Questions over Scottish Government's 'exorbitant' legal fees ahead of Covid-19 inquiry

Scottish ministers have been accused of “lawyering up” to “protect themselves” after signing a quarter of a million pound deal with a leading law firm to help key government figures prepare for a series of public inquiries into its handling of the coronavirus pandemic.

The Scottish Government has struck the lucrative contract with Morton Fraser, with work already underway to assist the government in drawing up statements from senior figures regarding how and why “key decisions” were taken.

The contract will see the law firm work with the government to produce “descriptions and narratives about key decision making during the handling of the response to the pandemic”, according to legal procurement documents.

It will cover both the Scottish and UK-wide Covid-19 public inquiries, which are tasked with scrutinising controversial decisions taken by ministers throughout the pandemic.

The Scottish Government said its legal costs for the inquiries would be “closely monitored”, and defended the decision to have the “proportionate specialist resource” to hand.

However, at a time when the pandemic’s significant economic impact has put public finances under unprecedented strain, opposition politicians said the sums involved were “eye watering” and “difficult to justify”.

The maximum value of the Morton Fraser contract is more than double the £118,000 the government spent on external legal advice in its ill-fated legal battle against former first minister Alex Salmond at the Court of Session.

The expense also excludes any work carried out by the government’s in-house legal services directorate in response to the statutory inquiries.

Deputy First Minister John Swinney announced the terms of reference of the Scottish Covid-19 public inquiry in December. Picture: Fraser Bremner-Pool/WPA Pool/Getty

It is unclear what other work Morton Fraser will carry out as part of the three-year long external legal advice contract. The tender was issued prior to the terms of reference of either probe being published, and the procurement documentation notes that “the intentions of both inquiry teams as to information and evidence that they require from the Scottish Government” is not known.

But the £250,000 value of the Morton Fraser deal has drawn anger from opposition parties at Holyrood.

Jackie Baillie, Scottish Labour’s Covid recovery spokeswoman, said: “The SNP’s first priority with the inquiry has been to lawyer up to protect themselves. These eye-watering sums raise serious questions about what the SNP are expecting this inquiry to uncover.

“The inquiry is a chance for people to get the honest answers they deserve about what really happened during the pandemic, but before it’s even begun the SNP government are spending hundreds of thousands of pounds getting their stories straight.”

She added: “These exorbitant sums are even more difficult to justify at a time when services are at breaking point and people are struggling to make ends meet during a cost of living crisis

“Ministers must engage with the inquiry openly and honestly – and they should put this money to better use.”

Alex Cole-Hamilton, leader of the Scottish Liberal Democrats, said: “The government needs to explain why it does not have the necessary legal expertise in-house and is ready to spend an eye-watering sum of taxpayers' money when all that's required is to turn up and tell the truth.

"If this is going to become like the Salmond inquiry, getting information out of the government will be like pulling teeth. That would let thousands of families down.

"The First Minster, her current and former health secretaries and senior officials should all be willing to give evidence under oath to help the justice system and families get to the bottom of this tragedy."

Murdo Fraser, the Scottish Conservative shadow cabinet secretary for Covid recovery, said: “The details of this contract ought to raise eyebrows. People will rightly want to know why the taxpayer is funding costly, external legal advice when the Scottish Government has its own, in-house legal department.

“The contract’s reference to ‘assist in the preparation of statements’ is also concerning. In the interests of a transparent, credible and reliable public enquiry, the public must feel confident that key government staff are offering unvarnished accounts of what went on.”

Judge Lady Poole will lead the Scottish inquiry, which will look at the government’s actions throughout the course of the pandemic. Under its terms of reference, the inquiry can only look into devolved matters in relation to Scotland.

It will focus on issues such as the transfer of patients between hospitals and care homes, infection control in care homes, and the delivery of testing regimes and vaccines.

It will also scrutinise the supply and distribution of personal protective equipment, decisions to enter lockdown, and the delivery of education throughout the pandemic.

Such terms of reference are currently subject to a “period of reflection” by Lady Poole, who will be able to suggest changes, which may include taking the remit of the UK-wide inquiry into account.

That inquiry is being helmed by Baroness Hallett, a crossbench peer and former High Court judge. It is expected to begin its work in the spring.

The terms of reference of the UK inquiry have yet to be finalised, but the fact that the Scottish Government’s contract with Morton Fraser covers it would point to an expectation that ministers and civil servants in Scotland will play some part in the process.

Morton Fraser’s team has extensive experience in advising participants in public inquiries, as well as interested parties. It has been involved in various phases of the Scottish Child Abuse inquiry, including conducting the advocacy when representing one core participant.

In 2020, meanwhile, it was awarded a £2 million contract from the Scottish Government to provide legal services for public local inquiries, which oversee some of the country's largest trunk road infrastructure projects.

Morton Fraser was one of two firms to bid for the lucrative Covid-19 inquiries legal services contract. The identity of the unsuccessful company is not known.

Even before its work to prepare for the Covid-19 inquiry, the government has been criticised over the legal fees it has run up in recent years.

Procurement records show the government has a long-term £480,000 contract in place with another law firm, Harper Macleod, to provide it with advice around public law and construction law throughout the public inquiry into the construction of the Queen Elizabeth University Hospital in Glasgow and the Royal Hospital for Children and Young People in Edinburgh.

It also paid £150,000 to hire Brodies as its external legal advisors during the UK-wide infected blood inquiry.

Spending records released under freedom of information legislation last year showed that in the five years to 2021/22, the government spent at least £5.8m on legal advice. It included more than £1m on cases involving the collapse of Rangers FC.

A spokesman for the Scottish Government said: “The government established the statutory inquiry to examine the handling of the Covid-19 pandemic in Scotland and is already preparing to provide detailed evidence to the inquiry as necessary.

“The government has in place a framework for legal services which includes a number of contracts carried out by external legal services providers.

“This contract was placed under that framework, however the nature of any legal support that may be sought has not been finalised and there is no commitment on our part to any level of spend.

“Any costs that do arise will be at the rates set out by the framework and will be very closely monitored to ensure best value.

He added: “Anyone, including ministers or civil servants, associated with the government’s response to the inquiry who is required to provide evidence will do so to the best of their own knowledge. It is right to ensure proportionate specialist resource is in place as part of this process, if needed.”

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