Scottish Government will not waive legal privilege for Salmond inquiry

The Scottish Government has said it will not waive legal professional privilege to provide documents to the Scottish Parliament’s inquiry into the handling of harassment complaints against Alex Salmond.

In a letter sent last week and made public on Monday, Deputy First Minister John Swinney said the privilege, which means private legal advice between a member of the profession and a client is able to remain secret, will remain in place during the inquiry.

Writing to Linda Fabiani, the convener of the Scottish Parliament’s Committee on the Scottish Government’s Handling of Harassment Complaints, Mr Swinney said not waiving the privilege does not necessarily mean witnesses before the committee will not be able to explain the legal position of the Scottish Government.

John Swinney in Holyrood
John Swinney in Holyrood

The inquiry was set up after a legal challenge by the former first minister into its handling of complaints made against him resulted in the Scottish Government paying out £512,250.

Mr Salmond was cleared of 13 sexual offences in March at the High Court in Edinburgh.

The committee previously asked for documents that show the legal advice given to the Scottish Government about the matter.

The Deputy First Minister said allowing the legal advice to be made public could damage future consultations with legal professionals, as they may not be “full and frank”.

In his letter, Mr Swinney said: “The Scottish Government seeks to act at all times in accordance with the law and takes legal advice as appropriate.

“The Scottish ministerial code reflects this in its requirement that decisions by Ministers and officials must be properly informed by legal advice.

“In order to ensure the good government referred to in the Scottish ministerial code, it is important that ministers and officials can seek legal advice whenever they need to and that legal advice can be freely provided by legal advisers to the Scottish Government – these exchanges must be full and frank to be of value.

“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.”

He added: “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.

“It is also for these reasons that successive administrations of different political complexions have reached the same conclusion in respect of other subject matter.”

Ms Fabiani previously said the committee was “frustrated and disappointed” at the amount of evidence it was handed that was redacted.

The committee is due to take evidence from Permanent Secretary Leslie Evans on Tuesday.