Strange case of missing advice

ONE of Alex Salmond's first moves in office was to lambast the then prime minister Tony Blair for riding roughshod over Scottish principles of due process. Blair's offence: concluding a memorandum of understanding with Colonel Gaddafi's Libya (the UK-Libya memorandum provided for work to begin on a bilateral treaty including arrangements for prisoner transfers).

According to Salmond, Blair had reached a dastardly rapprochement with Libya that could result in the release of Abdelbaset Ali Mohmed al-Megrahi. Moreover, Blair had done so without consulting the Scottish Executive.

Lawyers and policymakers familiar with such documents (not quite the rarities our local political leaders seemed to have thought) expressed bafflement at the political row: had the memorandum departed from the usual provision that prisoner transfer requests needed the agreement of our legal authorities? Salmond surely knew prisoner transfer agreements related only to prisoners for whom all judicial process is completed.

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He acknowledged that, far from being completed, Megrahi's case was due for a hearing before the Scottish Criminal Cases Review Commission and an appeal by the Lord Advocate on sentence had been marked - so why continue to decry Blair? Was this just a political stunt?

Legal eyebrows were raised further when Salmond made clear he was proceeding on the advice of Eilish Angiolini, QC, Scotland's senior prosecutor. Breaching centuries of ministerial protocol, he made clear not only that he had taken her advice, but the terms of her advice. Angiolini has remained silent on the subject.

Seeking to establish what advice on the memorandum and proposed treaty may have prompted Salmond's ire, I sought disclosure of all details held by the Executive on the Lord Advocate's advice (The Scotsman, 25 June)

An answer landed in my e-mail inbox late last Tuesday. Wait for it: that important legal advice leading to a near-rupture with the next-door neighbours? Well, sorry, but you can't see it - because Scottish ministers (Salmond and the Lord Advocate) have determined: "It would be contrary to the public interest to reveal whether that information exists or is held by us".

Yes, it is not just citizens who cannot be told the terms of the advice - we cannot even be told if there was any such advice in the first place. But, wait a minute, the First Minister had already told us he sent off his "letter of concern" having sought out that very advice. In fact, had he not told us what was in that advice?

The strange reticence now in producing any advice suggests some possible explanations: that there was no such advice from the Lord Advocate - an unconscionable state of affairs. Or that there was some advice given, but it is not being produced because "it is considered the public interest in disclosing this material is outweighed by the need to allow ministers and officials to be able to consider all options". Translated into plain English, it would be highly embarrassing to the First Minister and Lord Advocate for the advice to have been demonstrably wrong. Finally, that the advice given was correct - but was not the advice outlined by Salmond.

It was not all inactivity: Scottish ministers did manage to trigger the Freedom of Information Act provisions whereby a delay is deemed as a refusal of a request (taking eight weeks to refuse to say if advice even existed is regarded as dilatory by most authorities). Ministers now have to conduct an internal review of their odd refusal. A reply by 4 September is promised. I won't hold my breath: but I will keep asking. Unhelpfully for the administration, the questions raised by the strange case of the Lord Advocate's missing advice will not go away and demand a response more substantial than mere stone-walling. Meantime, what is now beyond doubt is that the bold claim the Lord Advocate's role had been removed from the political sphere has been dashed. More curiously, dashed by the man who made that very claim in the first place: Salmond.

• Brian Fitzpatrick is an Advocate. He was Labour MSP for Strathkelvin and Bearsden until May 2003 and previously served as head of the first minister's policy unit for the late Donald Dewar.