As the old song goes; “there are more questions than answers, and the more I find out, the less I know”
Such might be the hullabaloo over whether or not the Scottish Government previously sought, or obtained Legal advice, with regards to Scotlands membership of the European Union, upon Independence.
It has ended up with a whole load of political posturing and all sorts of accusations being flung about, including Labour calling Alex Salmond a bare faced Liar! Which is rather rich coming from Labour, but there we have it.
Indeed even some of the explanations as to what the hell are they all shouting about, simply seem to be even more convoluted and unintelligible to the general public.
So let me try and put this episode into some sort of understandable order.
what is it all about?
first off… We have something called the ministerial code.
Now this rather simple and obscure document…Westminster and Holyrood both have their separate codes of probity.They set out how a Government minister,including the first minister or prime minister can behave. what they can divulge, and under what circumstances can they divulge it?
A breach of the probity of action and behaviour of a Government minister, is a very serious matter indeed..which could well lead to the forced resignation of the minister in question, if they have been found to have behaved rather badly.
Blatantly lying to Parliament, would possibly come into that category.
Labour have sought to have Alex Salmond reprimanded under the ministerial code 5 times, and 5 times he has been found to have behaved perfectly correctly. Anyone would think that they wanted rid of him?
We have the issue of a request for the release of any Legal Advice which the Scottish Government has received, on the matter of Scotlands Legal position with regards to remaining in Europe upon Independence, and more specifically Had the Scottish Government sought or received such advice from the European Union.
The request to divulge such information, which was requested by a Labour MEP, was flatly turned down by the Scottish Government. On the basis that it is unheard of for any Government to accede to such such a request. Governments do not give out to anyone what legal Advice that they receive. Westminster never has, and neither will Holyrood.
The role of the Information Commissioner.
This role is in place for a commissioner to make rulings on freedom of Information matters.
On having the request for this general information to be released, with any documents attributing to it, the Information Commissioner who is newly in post, required that the Scottish Government do so, as it was of Interests to the people of Scotland.
The Scottish Government refused this request, and instead decided to appeal this ruling.
Subsequently that appeal has been dropped, following Nicola Sturgeons announcement in parliament on Tuesday, that the Scottish Government would now be seeking such advice.
The Role of the Law Officers under the Ministerial Code
The following extract is taken exactly from the document available in the Scottish Governments website.
“The Law Officers
2.30 The Scottish Law Officers (the Lord Advocate and the Solicitor General for Scotland) have Ministerial responsibility for the provision of legal advice to the Scottish Ministers on all matters relating to the law of Scotland. However, they cannot and do not advise on every legal issue which may arise. The primary source of legal advice for the Scottish Government (including Cabinet Secretaries and Ministers) is the Scottish Government Legal Directorate ( SGLD). Ministers and officials should be alert to the public interest in ensuring that their decisions are taken in a fully informed legal context and should ensure that the legal implications of any course of action are considered with SGLD at the earliest opportunity and that all briefing to Ministers is informed by SGLD’s advice on the legal considerations. Ministers should always take account of the public interest in maintaining the right to confidentiality of communications between legal advisers and the fact that release of the content of legal advice is likely to be appropriate only in highly compelling cases.
2.31 The Law Officers are concerned to ensure that the Government acts lawfully at all times. Accordingly, the general principle is that they must be consulted in good time before the Government is committed to significant decisions involving legal considerations. The process of obtaining an opinion of the Law Officers, if advice is expressly sought, will normally be a request on a reference from SGLD. That may be at the instance of Ministers, SGLD or the Law Officers themselves. Submissions to Cabinet Secretaries and Ministers raising legal considerations are copied to the Law Officers for information or awareness. Sometimes the Law Officers will comment on such submissions, but often they will simply note them. Either way, the Law Officers are not to be taken as offering a legal view on the contents of such a submission. If the Law Officers’ legal advice is required, it should be sought by a reference from SGLD for an opinion.
2.32 The following are examples of the kind of situation in which the advice of the Law Officers should be sought:
(a) The legal consequences of action by the Government might have important repercussions;
(b) A legal adviser in the Scottish Government has doubts about the legality or constitutional propriety of proposed legislation or executive action;
(c) Ministers, or their officials, wish to have the advice of the Law Officers on questions involving legal considerations; or
(d) There is a particular legal difficulty that may raise sensitive policy issues.
2.33 By convention, the written opinions of the Law Officers, unlike other Ministerial papers, are generally made available to succeeding administrations.
2.34 When advice from the Law Officers is included in correspondence between Ministers or in papers for Cabinet or Ministerial Committees, the conclusions may, if necessary, be summarised, but if this is done the complete text of the advice should be attached.
2.35 The fact that legal advice has or has not been given to the Scottish Government by the Law Officers and the content of any legal advice given by them or anyone else must not be revealed outwith the Scottish Government without the Law Officers’ prior consent. The only exception to this rule is that it is acknowledged publicly that the Law Officers have advised on the legislative competence of Government Bills introduced in the Parliament (see paragraph 3.4 below). Views given by the Law Officers in their Ministerial capacity are not subject to this restriction.
So there we have it…The main players and factors.
Starting off from the point that no Government, either Westminster or Holyrood ever release their Legal advice which they have received, Scottish Labour, in the shape of a Labour MEP decided to make the request anyway, knowing full well beforehand that such a request would be immediately declined!
They made the assumption that If the Scottish Government was refusing to say that they had Legal Advice, that indeed they must have, and therefore, because they weren’t saying what it was, it must be Bad news!
On having that request denied, as they expected, this allowed them to kick up an unholy stink about the Scottish Government not releasing the information, of whether or not they had received the advice?
The fact that the Scottish Government refused to do so, immediately led to a whole load of press and parliamentary accusations that the SNP were being dishonest, and not open with the Scottish people.
The fact that the Media would have also been acutely aware of what Labour was up to, and chose to run with these attacks, speaks more for the Medias Bias than anything else!
The next port of call was for Labour to make a complaint to the newly appointed Information Commissioner, asking her to rule that the Scottish Government release any such Advice and documentation they had on the matter. Which in her wisdom,or lack of, she acceded to.
Why she should make such a request is interesting. Perhaps it was her relative lack of experience and knowledge of Government standards which allowed her to make the ruling? Perhaps not? It is a puzzle.
At this point, it should also be pointed out that the Westminster Government have also subsequently had a similar request made by somebody else to it, on the same subject. And as per norm, this request has also been denied!
The Scottish Government on receiving this ruling from the Information Commissioner, decide to take it to appeal, which is quite within their rights. Whether they had received Legal Advice or Not, is quite immaterial. It is the principle of the matter, which they would be upholding..(NOTE section in BOLD, in the Law Officers section of the Ministerial Code above)
Meanwhile back in March, Alex Salmond was interviewed by Andrew Neill of the BBC. In the course of the Interview, many aspects of Europe were discussed, The Currency Issue of the pound versus the Euro, Scotland standing in relation to Europe, and also a question on whether any Legal Advice had been received?
The answer given by Alex Salmond, in the midst of around three interruptions, was of a general nature, not a specific nature.
Yes, they had received Legal advice, in relation to the Debate and the documents they had produced. Which are all available to be seen in the public domain.
But here comes the Twist!
What sort of Legal Advice was Andrew Neil enquiring about, he didn’t specify exactly! And what sort of Legal Advice was Alex Salmond talking about, given the actual course and context of that discussion?
When you are dealing with Lawyers, BBC Interviewers, Governments and Politicians…Best check to make sure you still have your fingers!
Alex Salmond is smarter than most.. Hence why the Unionists are bellowing in Fury!!
There is general Legal Advice, as given by the Scottish Government Legal Directorate. Which would have been the sort of Legal Advice Alex sought with regards to the documents on Europe they had produced, of which there are Three in the public domain.
Which is what Alex is talking about in this discussion.
And there is the Law Officers Legal Advice, with regards to written judgements and submissions on Legislation and matters of Serious implication for the country.
Two entirely different types of Advice, under two very different sets of circumstances.
So when Nicola Sturgeon stood up in the Scottish Parliament, and announced the results of the public consultation and then went on to say that the Scottish Government, subsequent to the Edinburgh Agreement between the two Governments of Westminster and Holyrood, setting out the Legality of the Referendum, would be seeking Legal Advice on the European question. She created an outcry from the Unionists and they lost the plot, and the Media, particularly the BBC, along with them!
Alex Salmond was called by Labour a Bare Faced Liar!
They did what they have so often done in the past, they quoted his words back to him,from his Interview with Andrew Neil, unfortunately they in doing so, Lied!
For by omitting 27 words, in order to rearrange what he actually did say, had the effect of totally distorting it!
They were besides themselves! They thought they had him hung out to dry!
Alex was called back to the chamber, and gave them the answer that he had not lied, and quoted back the exact transcript of that Interview… Funny that he should have had it so readily at hand eh?
Anyone would have thought he knew In advance, what Labour were going to do.
In short…. Alex had them all done up like a Kipper!!
He has sent them scampering down blind alleys for months…and still they don’t learn.
I am no fan of Ruth Davidson, the Scottish Tory party leader, but even she, in the previous Question Time programme on the BBC, stated that she knew the SNP didn’t have any specific advice from Europe, as she had already asked them, if any such request had been made? The answer she got back was NO. There had been none asked for.
That didn’t cost a penny, and it was very easily done. Labour, the expensive donkeys that they are…didn’t even have the sense to do that!
It wont stop the Media making a fuss about it all, and creating a crisis out of a drama!
Call themselves Political Commentators and journalists???? Pahhh
Ahhh the fun of politics ….
As an aside..The EU have been waiting for the agreement between the two Governments, before making any official comment. They could not make any comment, until all the agreements had been sorted out, because they would have been attempting to comment on something which had not been formalised,and was therefore still in the development stages, and not yet a Legal reality.Any official comment before that, would have potentially been seen as interference,and indeed, they wouldn’t have known exactly what they were expressing an opinion on?
What is now known as the Edinburgh agreement now makes the Referendum official,and legally Binding.. and the EU are now free to address the Reality of it. This is what the SNP have been waiting on, and it now allows them to seek that Legal Advice on Europe.
Does anyone, no matter what they think of Alex Salmond personally. Honestly think that probably the most wily,sure footed and astute politician we have in the UK today, would be stupid enough as to make such a gross error of judgement, and actually tell a downright Lie of this magnitude, on a subject he knew that Labour and the rest of the Unionists were trying to catch him out on,and on which the real truth of the matter would come out, when the Scottish Government eventually announced it! And Lie so, In a BBC UK Political programme of all places??
If you think that he would be so stupid? Then you are dafter than you look!! 🙂