Pants on fire?

Here is Paragraph 2.35 of the Scottish Ministerial Code

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.

Let me deconstruct this.

There are two propositions in the first sentence here: 

1. "The fact that legal advice has or has not been given......by the Law Officers ...must not be revealed...without the Law Officers consent"

2. "The.... content of any legal advice given by the Law Officers or anybody else [my emphasis] must not be revealed....without the Law Officers consent"

And having undertaken that deconstruction let me draw the obvious conclusion.

The revelation that legal advice has been given "by anybody else" does not require the consent of the Law Officers. Only the content of that advice. 

And that is, on any view, deliberately the way the code reads for otherwise the first sentence would be the, much simpler, 

"The fact that legal advice has or has not been given to the Scottish Government by the Law Officers or anybody else shall not be revealed without the consent of the Law Officers."

And that is contrary to the repeated assertion of the First Minister, most recently on Scotland Tonight last week, when he said: 

[Note, this was a baleful interview where the interviewer spoke more than the interviewee and completely failed to focus his questions but, if you won't take my word for the fact that the legal advice being asked about was any legal advice you can wade through the whole thing here here.] 

"That's quite clear in the Ministerial Code. It's both the fact of whether it exists, and the content. I would need to clear it with the Lord Advocate if I wanted to say that I had not sought legal advice."

No he wouldn't.

Now, if Bernard Ponsonby had been prepped to reply to that assertion with the response "No you wouldn't", then I suspect the last few days of Scottish politics would look very different. Indeed, I go so far as to say that Alex Salmond might not now be First Minister.

At this point however I need to engage in a minor history lesson.

Pre-devolution, the positions of Lord Advocate and Solicitor General were political appointments. Despite the fact that they were head(s) of the prosecution service, they were chosen on the basis of  Party loyalty. That was because they were required to occupy two roles, not only as “Chief Prosecutor(s)” but also as principal legal advisers to the Government itself. That was fine in 99.99% of prosecutions but it begged the question of what might happen in the remaining 0.01% of cases in which the Government of the day might have a view on whether the matter might, or might not, be convenient to be brought to Court

That there was a danger in that dual role was recognised after 1999. Although Labour’s first post-devolution Law Officers were Andrew Hardie and Colin Boyd, and then Colin and Neil Davidson, all very able lawyers but also all staunch Labour Men, when, in 2001 Neil stood down Jack started the process of depoliticising the positions. He did so by appointing Eilish Angiolini, an apolitical career prosecutor, indeed, then, a mere solicitor, rather than advocate, to the position of Solicitor General. (Why the "Solicitor General" was not, previously, actually, a solicitor is a topic for a completely different blog!)

And in 2006, when Colin Boyd stood down, Eilish was appointed Lord Advocate. What was interesting however was that the Labour administration did not completely de-politicise the Law Officers at that time for we brought in as Solicitor General John Beckett, again a very able lawyer but crucially also a Labour Party member.

I will return to that point.

For when the SNP first took office in 2007 they decided to complete the process of depoliticisation. Obviously John Beckett had to go but, rather than making an alternative political appointment (and there were many able Nationalist lawyers qualified) the SNP not only retained the services of Eilish but appointed as her deputy Frank Mulholland, also previously a career prosecutor.

Now in terms of the prosecution of crime in Scotland, these were developments that I entirely welcomed. For far too long prosecution of serious crime had been in the hands of gifted (sometimes not even that) amateurs appointed either for reasons of pure political patronage or as a "necessary" career obligation if your true objective was to be able to add the letters "QC" to your long term intention of practising in lucrative planning or commercial work. Professionalisation at the top led inevitably to professionalisation all the way down the process and, as a citizen with an interest in seeing bad guys get the jail, this can only be a good thing.

But, politically, I thought it was a mistake, or at least a mistake in the way it was done.

All Government's need, in confidence, partisan legal advice. If anything that is even more so for a government operating within defined statutory powers and even more so still for a government engaged in the process of attempting fundamental constitutional reform within the continuum of the rule of law. 

But there is a dichotomy between having access to that advice and at the same time having a completely independent system of prosecution provided by the same individuals.

Now this dichotomy is not entirely of the current Scottish Government's making. It is, to some extent, built into s.48 of the Scotland Act 1998 which enshrines the position of Lord Advocate and Solicitor General by name as positions which (by implication at least) must be filled by any Scottish Government, and reiterates the position of Lord Advocate as independent head of the prosecution service. (s. 287 of the Criminal Procedure (Scotland) Act is worth a look at insofar as it relates to the position of Solicitor General as "Deputy Lord Advocate".)

Anyway, the outcome of this process was that the positions of Lord Advocate and Solicitor General came to be in the hands of apolitical career prosecutors (for the sake of completeness now Frank as Lord Advocate and Lesley Thomson as Solicitor General) and that has proved and will prove to be a major problem for the Government.

Enough history, back to argument.

In modern times, practice of the law requires a degree of specialisation. My own wee firm is described as a general practice but that does not mean we would turn our hand to anything and everything or indeed to anything approaching anything and everything. Despite being a Legal Aid practice we don’t, for example, do immigration work of any sort because we simply have no knowledge of the law in that area. Sometimes we’d refer it; other times simply turn it away.

And the more you climb the legal tree the more even so specialisation is the name of the game. In the big firms, there are entire teams of lawyers who do nothing except, for example, in one department, employment law or, in another, commercial leasing. And they would be no more able to move between departments than they would be capable of moving to Cumbernauld and obtaining a non-molestation interdict.

Now in that spirit of specialisation, the Crown Office and Procurator Fiscal Service, with one or two minor exceptions, do nothing but prosecute crime and investigate sudden deaths. And Frank and Lesley, as career prosecutors, have worked all their lives in the Crown Office and Procurator Fiscal Service. If you wanted an opinion on transferred intent in assault or the distinction between embezzlement and theft by appropriation then they would have that at their, very expert, fingertips. But if you wanted an opinion on the rights of potential successor states to membership of the European Union? You might as well ask me.

So if, ex hypothesi, as the post 2007 Scottish Government you had wanted an opinion on the rights of an independent Scotland to succeed to membership of the European Union, you would have had two options.

You could go to the Scottish Government Legal Directorate or you could seek outside opinion either directly or, more likely, through the auspices of that Directorate.

Now my gut reaction is that this is a matter on which you would go “out”. That’s no disrespect to the Directorate. Its head, Murray Sinclair, is also somebody with whom I’ve brushed along in my own past activities at the Law Society and he is a lawyer of the very first rank. His deputy in charge of Constitutional matters, Alison Coull, has a stellar reputation within the Profession.

But it would just be in keeping with normal practice to seek absolutely single minded counsel on a matter of this importance. External Counsel. If I was sticking a pin in a legal map, in the solicitor’s branch to somebody like Michael Dean at MMS or Jim McLean at Burness; within the Faculty of Advocates to Brian Napier or Ian Forrester but, actually, if I could really aim my pin I’d go for Aidan O’Neill. Not because I have any idea of where he stands on the Union but because, within the profession, he is recognised as the foremost of experts in this area. It won’t be the him however, since we already have his view and, despite it being posted on the YES Scotland website by some numpty who didn’t understand it, it is really not what the Nationalists want to hear.

Now, let’s consider when that external advice would have been sought. It would surely have been before Tuesday last? After all, the SNP have been in power since 2007 and in overall majority Government for the last eighteen months. Throughout that whole period their position has been that an Independent Scotland would proceed seamlessly into EU Membership. Is it really credible that throughout that whole period nobody thought, even once, that it might be worth running that proposition past a lawyer?

But, you say, they claim they have not had legal advice. No, actually, they don’t.

Here is what Nicola said on Tuesday

In light of the Edinburgh agreement, by which both Governments have agreed the process for Scotland to achieve independence, I can confirm that the Government has now commissioned specific legal advice from our law officers on the position of Scotland within the European Union if independence is achieved through this process. The Scottish Government has previously cited opinions from a number of eminent legal authorities, past and present, in support of its view that an independent Scotland—[Interruption.]

The Presiding Officer: Order.

Nicola Sturgeon: —will continue in membership of the European Union but has not sought specific legal advice. However, as the Edinburgh agreement provides the exact context for the process of obtaining independence, we now have the basis on which specific legal advice can be sought. The views of those other eminent authorities will continue to be highly relevant, but the Government’s position in the independence white paper will be based on and consistent with the advice that we receive.

Given that my statement answers the ruling of the Scottish Information Commissioner on the existence of legal advice, there is now no need for the Government to pursue its appeal against that ruling in this specific case, and I have asked our lawyers to advise the court accordingly and to ask that the appeal be dismissed. [Interruption.]

The Presiding Officer: Order. This is an important issue, which has been raised a number of times in the chamber. Please have the courtesy to listen to the cabinet secretary.

Nicola Sturgeon: I should also make it clear that, in confirming that the Government has asked for law officers’ advice, I have sought and received the prior agreement of the Lord Advocate. This statement is therefore consistent with paragraph 2.35 of the ministerial code and the long-standing convention on which that section of the code is based, both of which will continue to be vigorously upheld by ministers. The confirmation that I have given relates to the particular circumstances of the issue and does not set a precedent.

The two highlighted passages above are mine. Nicola has confirmed that they have no previous advice “from the law officers” but fails, in my view to confirm or deny whether they have previous advice (and here I refer back to the terms of the Ministerial Code) from “anybody else”. The second highlighted passage is ambivalent on that point. If challenged she could, I think, legitimately, say that the “advice” she refers to is advice “from the law officers”.

Now why is any of this important? Because throughout the process, well before Tuesday, Salmond maintained, falsely, that he could not disclose the existence of advice from “anybody else” without the permission of the Law Officers because of the terms of the Ministerial Code. Now why would he bother to misinterpret the code in this way? Because, of course, if he disclosed that they had sought advice from “anybody else” the focus would have turned to who that was and what had they said. And, more importantly still, as to whether his own previous public statements reflected the content of that advice.

Now, I draw four conclusions from this. The first is a purely governmental one. All of this could have been avoided if one of the Law Officers had remained a political appointment. Advice could have been sought without any need for the disclosure of either its existence or its content. Insofar as the Information Commissioner tried to rule otherwise I think the Government would have won in Court. Interestingly, even now, on the point of the existence or otherwise of advice from the law officers, I think the Government would still have won in Court, albeit only at the price of having to disclose whether they held advice from “anybody else”. The very machiavellianly minded might think indeed that was the real game in play this week.

Secondly, this is not over, for Catherine Stihler’s inquiry remains whether the government has been given any legal advice on the matter. Now that they’ve dropped their appeal, that question will have to answered fully. Be very careful how and when they try to slip this out.

Thirdly, the Lord Advocate, whether he wants to be or not, is now in an astonishingly pivotal position. I think it’s highly unlikely that you’ll see, over the next few weeks, the lights burning even later than usual at Chambers Street while Frank and Lesley sweat over the European Law Textbooks and Primary Materials. Rather, they themselves are likely to go out for external advice. But while having obtained that advice and transmitted it to the Government, they both remain people of the highest integrity. They would not expect their opinion to be made public, no lawyer would, but if public statements are thereafter made by others claiming to be consistent with that advice which are not, actually, consistent with that advice, then I cannot see them willing to remain in office. And if they were to go in that circumstance......? The stakes are as high as that. And, regretttably for the First Minister, since they are, by virtue of his own best intentions, truly independent, apolitical, lawyers so will be any opinion to which they, vicariously, put their name.

And finally, what will that opinion be? Well that I can say. It will be that there is no certainty of anything. I say that not because it’s my opinion but because it is the opinion of much more eminent experts than me. Not only of Aidan O'Neill, helpfully still being quoted on the YES Scotland website but also of the independent experts asked to provide their opinion by the House of Commons (linked to by O'Neill) and last but by no mean least of Professor Neil Walker of Edinburgh University, no Unionist stooge he, as recently as today.

As with so much else, not so much the possibility of an Independent Scotland remaining in the EU as the precise terms on which that membership would be offered involves, at best, an informed prediction or, at worst, a leap of faith. Just like continued membership, on a non-nuclear basis, of NATO or indeed the continued employment of the Bank of England as a lender of last resort.

I have no idea why Salmond allowed a different impression to be created except that again I do. For who, other than a true believer would ever vote to take a leap in the dark?

Ages back, I blogged that I had never seen any poll with support for Independence as low as 20%. Now, however, I wouldn't rule it out.