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Tom Gordon: Salmond inquiry block shows the need for Holyrood reform

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A Government who seek to place themselves above the express will of Parliament are a Government in contempt of the people. They are a Government who have already taken a dangerous step down the road from democracy to dictatorship.”

Not my words, but those of SNP MP Peter Grant in the House of Commons on 4 December 2018. A bit lurid from the party’s then Brexit spokesman, perhaps, but you catch his drift.

Governments that defy parliaments have forgotten their place in the pecking order, and bad things follow.

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Mr Grant’s speech was on the day the UK Government was found in contempt of parliament for refusing to hand over its legal advice on the EU Withdrawal Agreement, despite a vote by MPs to do so three weeks earlier.

The issue of compliance with the will of parliament has been a big part of the Holyrood week, too, with the Scottish Government suffering a second defeat, also three weeks after the first, on whether to hand over some of its own legal advice.

In its case, about its doomed defence of the civil action Alex Salmond won against it in 2018. MSPs have voted twice to see it, the Government has refused, although it says it is belatedly thinking about it, but won’t say when it will make up its mind.

To recap, the former first minister won a judicial review against the Government after it botched a probe into sexual misconduct claims made against him by two civil servants.

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He showed the exercise was “tainted by apparent bias” from the start, and taxpayers were left with a £512,000 bill for his legal costs.

A cross-party inquiry has been trying to find out what went wrong since the Government’s case collapsed in January 2019. At the time, Nicola Sturgeon promised the inquiry “whatever material they request”.

Instead there has been a masterclass in foot dragging, smokescreens, and evasion. Evidence has been missing or late, deputy First Minister John Swinney is planning an unwanted, tangential court action guaranteed to waste time but deliver little else, and Mr Salmond’s lawyers have been drowned in last minute, frequently irrelevant paperwork. In short, the Government has been at it.

The biggest bone of contention has been its legal advice on the litigation.

This is central to the inquiry’s work as it would allow MSPs to compare what the Government did with what it was being told by its legal team.

Were the advice and the action in lockstep, or did Ms Surgeon’s administration depart from the advice to a perverse, even sinister, degree in its bitter fight with Mr Salmond?

It would allow the inquiry to test the theory that the Government knew its case was on the skids well before it conceded, yet it carried on, leading to punitive costs for the public purse.

If, as the opposition suspects, the Government has something to hide, such as abusing its power and our money, the legal advice would go a very long way to clearing that up.

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But Mr Swinney has repeatedly refused to hand it over, arguing it would be against the public interest.

It would damage the government’s ability to receive future legal advice “in all candour”, undermining all ministerial decision-making.

The suggestion is that if lawyers knew their advice might be public one day – which is, in theory, already the case – they would fall down on the job and stop supplying the rigorous assessments they have been trained to offer, and take professional pride in, and hand in a lot of wishy-washy tosh.

One might have thought the prospect of publicity would encourage them to up their game, so they didn’t lose face and business. Or spur the Government to use lawyers who don’t flinch. But, no, according to Mr Swinney, nothing lowers universal standards like sunlight. What rot.

Mr Swinney even claimed on Wednesday that the “maintenance of legal professional privilege, which has existed in law for all time”, was at stake if the advice came out.

As if a cornerstone of Scots law would crumble as a result of a single event. Ludicrous.

Ms Sturgeon’s favourite get-out is the Scottish Ministerial Code, which says legal advice can only be released if ministers decide “the balance of public interest” favours it and the law officers agree based on “compelling reasons for disclosure in the particular circumstances”. But she is cherry picking, as the code also contains a presumption in favour of disclosure. It says ministers “should refuse to provide information only in accordance” with FoI law and other relevant statutes.

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So is there a relevant law stopping them from disclosing this advice?

No, there is only a convention that it is secret, and conventions can be departed from now and again without the sky falling in. They are flexible by design. Democracy will cope.

In her introduction to the Code, Ms Sturgeon also wrote: “It is essential to set and maintain the highest standards of propriety and openness for Government ministers… I will lead by example in following the letter and spirit of this Code”. If only.

The Salmond inquiry has illuminated a deficiency in Holyrood.

When the UK Government was found in contempt of parliament, and finally coughed up its legal advice, it was because it ignored a binding vote of the Commons, an archaic device known as a humble address.

There is no equivalent at Holyrood. Scottish ministers must obey the law, but other votes, including those demanding to see legal advice, are not binding on it. They lack real teeth.

As Mr Grant knows, shameless governments acting in bad faith can shrug off such gummy reprimands, and nasty things may follow. Thank goodness we don’t have one of those.

But just to future-proof things, Holyrood might want to urgently consider how it can better hold an over-mighty executive in check.

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