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by Jenni Davidson
02 December 2020
John Swinney agrees to release legal advice to harassment committee

John Swinney - Image credit: Parliament TV

John Swinney agrees to release legal advice to harassment committee

John Swinney has agreed to release the legal advice given to the Scottish Government regarding the judicial review in the Alex Salmond case.

In a letter to the committee investigating the Scottish Government handling of harassment complaints against Salmond, the Deputy First Minister said he was “keen to consider” with the committee how it might be able to access the information.

But he said that ministers were “anxious to avoid creating a precedent” that could impact negatively on future governments.

In the letter, Swinney warned: “There is no clear precedent for the Scottish Government to waive legal privilege in the circumstances of litigation, which is by its nature adversarial and requires the ability for candid and confidential advice.

“There is potential, in reaching a decision on this specific matter, to create a new precedent that would undermine the ability of not just the current government, but future Scottish governments to receive legal advice with necessary candour, including in the context of litigation.”

But he said he took seriously the decisions of parliament and the Scottish Government commitment to provide the committee with what it needed.

There has been a long-running controversy over the release of the advice, which is subject to legal professional privilege, meaning the government must not reveal what it was advised or by whom, except in exceptional circumstances and with the agreement of the law officers.

MSPs have twice voted for the Scottish Government to release the information to the harassment inquiry.

The committee has also repeatedly expressed its frustration that its inquiry is being hampered by the Scottish Government not releasing all the information requested.

Swinney said: “I have discussed this issue with Cabinet colleagues this morning and I am keen to consider with you how we might establish a practical way that enables the committee to have access to the information it seeks.

“Ministers are anxious to avoid creating a precedent that will impact negatively on the future ability of Scottish Government administrations to seek and receive legal advice in confidence consistent with the long-standing principle of legal professional privilege.

“I recognise, given the timescale for the committee to complete its evidence gathering, the need for urgent progress on this matter.

“I would like to propose an initial discussion between officials tomorrow at which the Government will propose mechanisms to establish an appropriate way forward on this matter.

“I am committed to resolving this issue swiftly to respond positively to the decisions of the committee and of parliament and would be grateful for your assistance in taking this forward.”

Responding to the letter, Scottish Labour deputy leader and committee member Jackie Baillie said: “This letter is long overdue but represents a first step in releasing the legal advice to the committee.

“The Scottish Parliament has commanded the SNP government to hand over the legal advice and it’s clear that it has dawned on John Swinney that they can’t ignore the wishes of Parliament.

“It is impossible for the committee to fulfil its function if this vital information is not handed over.

“It is time for the government to co-operate with the committee to uphold the will of the Parliament.

“The committee’s fight for information has been obstructed at every turn, the government has maybe now realised that this information must be published.

“I’m glad the government has understood that it can run, but it cannot hide.”

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