JOHN Swinney has caved to pressure and agreed to release crucial legal documents after his job was put on the line by opposition MSPs.
The Scottish Conservatives had tabled a motion of no confidence in the Deputy First Minister if he continued to refuse to publish the key documents repeatedly requested by MSPs investigating the Scottish Government's botched handling of complaints against Alex Salmond.
The documents contain the legal advice the Scottish Government received regarding the judicial review taken by Mr Salmond which cost the taxpayers more than £500,000.
Labour, Liberal Democrat and Green MSPs indicated they would support the Tory motion of no confidence if the files were not made public – forcing the Scottish Government into a u-tun in order to save Mr Swinney’s job.
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The Government had insisted that legal privilege prevented the documents from being made public amid claims ministers would be breaking the ministerial code by doing so without the proper permission from their legal team.
Opposition politicians believe the document will show the Government pressed ahead with fighting Mr Salmond’s judicial review despite being told they would lose – a prospect the former first minister told MSPs on Friday would constitute a breach of the ministerial code.
But Mr Swinney has insisted that the documents will “confirm that these allegations are false”.
The decision by Mr Swinney to release the Government’s legal advice around the judicial review received the prior agreement of law officers in line with the ministerial code.
Ahead of release, under data protection rules, legal notifications to individuals impacted are expected to be complete before the Parliament will receive the material it has repeatedly called for.
Mr Swinney said: “In normal circumstances, government legal advice is not released. Indeed, such is the importance of being able to get frank, private advice, it is almost unheard of for the legal advice to be released.
“But, we have to acknowledge that the issues at stake now are not normal. The very integrity of the legal system is being questioned.
“Serious allegations have been made. This material allows people to confirm that these allegations are false.”
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He added: “We have already shared in private with the Scottish Parliament’s committee on these issues the substance of the advice.
“Now, we recognise that in order to counter the false claims being made by some, we must go further. Subject to the mandatory legal checks and processes, we will release the key legal advice.”
But MSPs could keep the threat of a no confidence vote hanging over Mr Swinney, depending on how much information is made public.
Andy Wightman, who sits on the committee investigation the handling of complaints warned that Mr Swinney is only promising to release the “key legal advice”, despite MSPs pleading for all of the legal advice it received for the judicial review to be handed over.
Mr Wightman added: “It is not for the Scottish Government to determine what is key legal advice. Keep that motion of no confidence on the table.”
Tory MSP Murdo Fraser, who sits on the committee has labelled ministers “a shameless opportunistic bunch” after the u-turn, branding the action a “disgraceful contempt of Parliament”.
He added: “They ignore two votes in Parliament demanding the legal advice is published and it’s only when the Deputy First Minister sees the writing on the wall that they cave.”
The row over the documents being released comes as the Lord Advocate is set to be grilled by the committee on Tuesday over “inconsistencies” in the Crown Office’s approach to evidence being redacted.
The committee is also set to use legal powers to require Mr Salmond’s lawyers to hand over documents after the former first minister indicated his lawyers would be happy to comply.
Labour’s Jackie Baillie, who sits on the committee, has suggested there is a “clear argument now for the separation of powers within the Lord Advocate” amid concerns over the role James Wolffe, also the Government’s chief legal adviser, played in the Crown Office insisting that Mr Salmond’s evidence be redacted.
She said: “Alex Salmond who was the one who took the Lord Advocate out of his Cabinet, recognising that there was a potential for conflict of interest. It was Nicola Sturgeon who put that person back in.
“I think as devolution has developed, you of course should be reviewing the institution and what should happen.
“I think there is a clear argument now for the separation of powers within the Lord Advocate – he shouldn’t be both a minister in the Cabinet with Cabinet responsibility and leading the Crown Office.”
Concerns have also been raised that the Lord Advocate, the Crown Agent and Alex Prentice QC are set to meet with the committee in private before the public evidence session.
Margaret Mitchell, vice convener of the committee, said: “The Lord Advocate is responsible for all decisions taken by the COPFS.
“Regardless of whether he recused himself from any of these decisions, he and he alone has the duty to give his view of any COPFS decision and to explain why it was justified or otherwise.
"The public is following and fully engaged in this issue. They should, in the interests of full transparency and accountability, be afforded the opportunity to judge for themselves if the Lord Advocate and Crown Agent’s responses are fair and justified.
“It would not be appropriate for the Lord Advocate, the Crown Agent and Mr Prentice QC to meet in private with the inquiry committee before giving evidence in public tomorrow.
“Nor would it be appropriate for the Lord Advocate to seek to influence what the inquiry can or cannot publish in its final report.”
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