John Swinney refuses to reveal legal advice in Alex Salmond case
Leslie Evans, who leads the Scottish civil service, and John Swinney have both rejected demands for the advice to be made available to the Scottish Parliament committee which is now conducting an investigation into the government's actions in relation to sexual misconduct allegations made against Mr Salmond.
The specially-convened committee, chaired by SNP MSP Linda Fabiani, begins tomorrow and the refusal to release legal guidance sets up a likely clash when Ms Evans appears before it as the first witness.
The committee had written to the government asking for more transparency over the legal advice it received when Mr Salmond took it to court over how it conducted its inquiry.
The Court of Session case forced ministers to admit the probe had been unfair, unlawful and “tainted by apparent bias” and resulted in the Scottish Government paying out more than £500,000 to Mr Salmond.
Despite the judicial review being a key part of the committee inquiry, the government has refused to release any of the legal and court papers related to the case, citing legal privilege.
Last week Ms Fabiani wrote to the government urging it to waive privilege and cooperate in the interests of full transparency. However in letters received by the committee today from Ms Evans and Mr Swinney, the government has refused to budge and will not reveal the advice.
Mr Swinney said that waiving privilege would be “inappropriate”. His letter states: “In order to ensure the good government referred to in the Scottish Ministerial Code, it is important that Ministers and officials can seek legal advice whenever they need to and that legal advice can be freely provided by legal advisers to the Scottish Government; these exchanges must be full and frank to be of value.
"If the Scottish Government were to waive privilege it would undermine this ability on future occasions when Ministers and officials choose to seek legal advice and would impact negatively on when and how legal advice is provided. This would not be in the interests of good government and the upholding of the rule of law.”
In her letter Ms Evans states that she had previously explained that the government’s "decision not to waive legal privilege does not prevent a full account of the Government’s legal position at various points in time being given to the Committee” and adds: “in accordance with usual practice, the Scottish Government is not disclosing the internal processes of taking and receiving legal advice or the scope and nature of any requests for legal advice or any legal advice provided.
"The Scottish Government’s written statement about the judicial review already discusses its legal position for example in relation to conceding the judicial review proceedings. The Committee will be able to explore that legal position further with witnesses, including the Lord Advocate.”
Both also objected to the committee’s demand for written and oral evidence from civil servants, claiming that officials giving “personal reflections or private opinions” about government matters, rather than representing their ministers, would be “entirely contrary” to civil service practice and “not possible under the civil service code”.
The move potentially sets up another clash over whether Nicola Sturgeon’s chief of staff, Liz Lloyd, can give evidence. The committee is also investigating whether Ms Sturgeon broke the Scottish ministerial code by staying in contact with Mr Salmond while her officials were investigating him.
The committee says Ms Lloyd should be included among its witness, while the government has asserted her evidence should be part of a more “general narrative”.
Mr Swinney said: “I must emphasise that officials’ attendance is on behalf of and with the consent of Ministers, and not on an individual or personal basis. Neither Scottish Ministers nor the Permanent Secretary of the Scottish Government have the power to set aside or suspend the application of the Civil Service Code in Scotland.”
MSPs are now reportedly considering using a rare power to compel the production of documents. Last week they warned they would “not hesitate to explore all options available” and said there was “frustration and disappointment” at the government "sitting on evidence”.
Speaking ahead of tomorrow’s committee, Scottish Liberal Democrat member Alex Cole-Hamilton MSP said: “A government process that was designed to help victims of bullying and harassment failed utterly and left workers, who had already suffered, exposed and denied natural justice.
"This committee must get to the bottom of a series of events that has cost Scottish taxpayers hundreds of thousands of pounds and left the Scottish Government deeply embarrassed.
“The committee has already faced challenges over securing documents and statements from persons of interest. That evasiveness does not serve the people of Scotland well. As the committee moves to the next stage, we will expect witnesses to be open and transparent about their role in this saga.”
Murdo Fraser MSP, one of the Scottish Conservative representatives on the committee, added: “Everyone recognises the need to protect the identity of complainants and that the Scottish Government must meet its obligations on data protection and to the courts.
“But enough has been hidden behind closed doors in SNP government corridors, from the Alex Salmond court case failures to the vast number of bullying allegations revealed over the weekend.
“The committee cannot fulfil its function without full transparency. If we only receive part of the evidence, we will only be able to produce part of an inquiry report. The Scottish public want scrutiny, not more secrecy. Nicola Sturgeon and Leslie Evans can’t pick and choose what evidence the inquiry gets to see.”
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