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by Louise Wilson
04 November 2020
MSPs call for Scottish Government to publish legal advice over Alex Salmond judicial review

MSPs call for Scottish Government to publish legal advice over Alex Salmond judicial review

MSPs have backed a call for the Scottish Government to publish all the legal advice received relating to the judicial review into its handling of complaints against Alex Salmond.

Opposition parties insisted there was no legal restriction against publishing the advice and it was necessary to be able to hold the government to account for its botched investigation into the former first minister.

But the government had argued that doing so would set a precedent for publishing advice received on litigation, which would impede the ability to receive “full and frank” advice in the future.

Despite the protestations from government, MSPs voted 63 to 54 in favour of the motion. Five MSPs abstained from the vote.

While not binding on government, Deputy First Minister John Swinney confirmed ministers would now “consider the implications of the motion” and respond to parliament shortly.

The Holyrood committee tasked with investigating the complaints process and judicial review which led to the government having to pay Salmond over £500,000 in legal expenses has previously expressed frustration about the lack of evidence and “obstruction” it is encountering.

The legal advice has become central to the committee’s inquiry to ascertain why the government initially defended itself against the judicial review brought by Salmond, before conceding it had acted unlawfully.

Speaking in the debate, Scottish Conservative MSP Murdo Fraser said: “If it is the case that the legal advice obtained by the Scottish Government either in house or externally from council said they had a good case to defend, then lessons need to be learned as to why such poor advice was offered to ensure no repetition in the future.

“The alternative explanation is much more sinister and concerning, because Mr Salmond’s allies believe that the legal advice obtained by the Scottish Government told them that the judicial review case should not be defended, as there was very little chance of success.

“If that is indeed what the legal advice said, it means the position that was taken at the top of the Scottish Government to go and defend the case regardless, a decision which in the light of what we now know was both irresponsible and reckless, more worrying still is the accusation that that decision was made on political grounds and in effect the Scottish Government were pursuing a vendetta against the former first minister and using public funds to do so.

“Presiding Officer, that claim may well be nonsense, but it is impossible for the committee or indeed the public as a whole to reach a view on which of these explanations is the correct one in the absence of the legal advice. That is why its publication is so vital to the inquiry.”

However, the deputy first minister said it was important to maintain the privilege covering legal advice to government and it had only previously been waived on major issues of public policy.

Swinney said: “If the government were to waive its privilege in this case, I would be concerned that in any future high profile litigation involving the government, ministers may not be able to benefit from advice given on a full and frank basis should there be a fear that advice might be published.

“All of us surely must recognise the benefits for public policy and decision making for the government to be able to benefit from being able to take legal advice which is robust, which considers all possibilities, and weighs up all considerations. None of us surely want public policy and decision making to fall victim to legal advice that airs on the side of caution for the fear of its publication.”

He added: “I’ve concluded that the public interest in maintaining the privilege, including the negative impact of waiving privilege on all areas of government operation, outweighs any perceived public interest in disclosing legally privileged material.”

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