A motion of no confidence in the Deputy First Minister proposed by Lothians MSP Miles Briggs was debated earlier this afternoon at The Scottish Parliament.
The motion read: “That the Parliament has no confidence in the Deputy First Minister, in light of the Scottish Government’s continued failure to publish legal advice called for in two resolutions of the Parliament on 4 and 25 November 2020.”
This resulted from what the Scottish Conservatives regard as the failing on the part of the Deputy First Minister to provide copies of confidential legal advice given to The Scottish Government in relation to the Judicial Review raised against them by former First Minister Alex Salmond to a Holyrood Committee.
The parliament voted by majority twice in November 2020 demanding that such advice would be released to the Holyrood committee on the Scottish Government Handling of Harassment Complaints. Mr Swinney did not release the documents until last week when this motion of no confidence was already tabled.
The Conservatives say they back the committee and Ruth Davidson MSP said in proposing the motion that this is “no way for the Scottish Government to treat the parliament”.
John Swinney spoke on his own behalf, which in itself is unusual, but very little about the matters of the last three years involving the former First Minister, the government’s procedure in dealing with harassment complaints or the proceedings of the committee itself have been usual.
Mr Swinney explained that successive governments both in Scotland and in the rest of the UK have always retained legal advice as confidential and legally privileged, and he had sought to do the same in this case. He also said that the government had made a submission to the committee last December setting out what the legal advice had been in an effort to protect legal privilege.
He set out his reasons for the unprecedented release of legal advice to the government. He said: “I decided last week that the balance of public interest had shifted, and we should publish the advice from counsel. That meant that the process of release moved on to its second stage – consideration by the law officers for the first time. They consented to the release.”
Mr Swinney said that all legal advice has now been released and that there are no minutes of some of the meetings with counsel. He defended himself against the vote of no confidence saying it was “baseless”.
He pointed out that even at 11 December 2018 the Lord Advocate advised that the government should proceed with the Judicial Review, and that it was only on 19 December that a note from counsel set out that the case had become unstateable and that the government should concede on the basis of apparent bias in the way the procedure was implemented.
The government conceded their defence of the petition for Judicial Review in January 2019. The case fell as the Investigating Officer (appointed by the government to investigate claims against Alex Salmond of sexual harassment by two women who worked for The Scottish Government) had had previous contact with the women about the claims. This ran counter to the government’s own new procedure. The unsuccessful defence of this Judicial Review procedure cost the government, and the taxpayer, £512,000 in costs repaid to Mr Salmond.
Patrick Harvie Co-Leader of Scottish Greens said the party supported the creation of the committee and that they wanted to see it concentrate on the important issue of looking at the way the government had dealt with complaints. Mr Harvie said: “But what should have been an inquiry strictly focused on that issue of how allegations are handled was allowed to become nothing more than shabby political theatre.”
Jackie Baillie Scottish Labour deputy leader and committee member said that the committee has been treated with contempt. The Liberal Democrats will back the motion of no confidence and Alex Cole-Hamilton MSP reminded MSPs that this was the second such motion in the Deputy First Minister in the last twelve months. He threatened to table a third if Mr Swinney does not allow a report on secondary schools to be published as requested by MSPs.
The committee was charged with this remit: “To consider and report on the actions of the First Minister, Scottish Government officials and special advisers in dealing with complaints about Alex Salmond, former First Minister, considered under the Scottish Government’s “Handling of harassment complaints involving current or former ministers” procedure and actions in relation to the Scottish Ministerial Code.”
The motion will be voted upon at 8.00pm today, but it is widely expected that it will not succeed, as the Scottish Greens have said they will back the government.
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