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by Gemma Fraser
17 August 2020
John Swinney refuses to reveal legal advice in Alex Salmond harassment case

Parliament TV

John Swinney refuses to reveal legal advice in Alex Salmond harassment case

Deputy First Minister John Swinney is refusing to waive confidentiality rules regarding legal advice given to the Scottish Government in the Alex Salmond case.

Swinney said it would be “inappropriate” to waive legal professional privilege on the handling of complaints against former First Minister Alex Salmond, and that it would not be “in the interests of good government”.

A Scottish Parliament committee is conducting an investigation into the Scottish Government’s actions in relation to sexual misconduct allegations made against Salmond.

Calls were made for legal advice received by the Scottish Government to be made available to the committee, with committee convener Linda Fabiani writing to Permanent Secretary Leslie Evans to express her “frustration and disappointment” at the approach.

But in a letter to Fabiani, Swinney said:  “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. It is for these reasons that it would be inappropriate to waive legal professional privilege in respect of communications about these judicial review proceedings and the handling of the complaints against the former First Minister.”

However, Swinney stated that individuals would be free to answer any questions fully when giving evidence to the committee.

“It does not prevent Scottish Government witnesses from explaining in detail to the committee in their evidence what the Scottish Government’s legal position was at various points”, he wrote.

The committee was established after Salmond launched legal action against the Scottish Government at the Court of Session, with the government eventually conceding that its investigation was flawed and paying around £500,000 in legal costs to the former First Minister.

The first evidence session is due to get underway on Tuesday, with Permanent Secretary Leslie Evans the first to be called.

In another letter, dated August 13, Evans reiterated that she would prefer to appear with other civil servants because she had “little involvement in the drafting of the procedure” on harassment.

Swinney stressed that civil servants would only be allowed to give evidence on behalf of ministers and would not be giving “personal reflections or private opinions” and is particularly significant when it comes to the potential for Nicola Sturgeon’s chief of staff, Liz Lloyd, to give evidence to the committee.

He wrote: “As set out in statute, the role of the civil service – including special advisers - is to serve, and be accountable to, the elected government of the day.

“It is ministers who are in turn accountable to parliament for the actions of government. With the express approval of ministers, civil servants can, and do, have a role in supporting ministers to discharge that accountability to parliament.

“However, it is not possible under the Civil Service Code for personal reflections or private opinions to be offered on matters which are properly the responsibility of the government. To do so would be entirely contrary to the constitutional and contractual status of the civil service.”


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