As the devolved system attracts unprecedented attention in UK media, Richard Parry discusses the significance of the belated disclosure of sensitive advice at the heart of the Scottish Government.
When both UK news channels run live coverage of hours of oral evidence to a Holyrood Committee (on 26 February and 3 March), something extraordinary is going on. Personalities and content explain this unusual attention, but there is also scope for reflection on the wider constitutional context.
Devolution is innovative at the legislative level, but derivative at the executive level. Scottish versions of the ministerial and civil service codes adapt UK norms. Civil service management remains undevolved (providing an opening for Conservative MPs to intervene, including using Westminster parliamentary privilege on 16 March to generate reportable allegations). Concepts like special advisers, the role of Chief of Staff, and the Senior Civil Service are shared across UK administrations. In practice this has allowed the Scottish Government (SG) to be ambivalent between being innovative (as in the 2010 policy on harassment) or – as presented – taking the lead from the UK Cabinet Secretary (the 2017 policy).
The derivation is at second hand, via the century-long Scottish Office within the UK government. The Lord Advocate’s Office is still older; it was never part of the Scottish Office and was not to be devolved in the unimplemented Scotland Act 1978. On prosecutions, the position is the same in devolved and UK systems – the chief official (the low-profile Crown Agent and the better-known Director of Public Prosecutions) is responsible to the politically accountable law officers (Lord Advocate and Attorney-General, assisted by the Solicitor-General and Solicitor-General for Scotland respectively).
Finding legally-qualified government legislators to fill the law officer posts is much harder in Scotland, and under devolution the Lord Advocate as well as the Solicitor-General have moved in a non-partisan direction where incumbents can survive a change of party control (in England the posts are still fully political). The recent high profile of the Lord Advocate has shown the legal and political ambiguities of the role, neither politically partisan nor a wholly detached legal adviser.
Within this basic derivation, Scottish government is smaller and more concentrated. In Whitehall, there has been academic debate about whether the spending departments are fully part of the ‘core executive’ (the policy-making heart of government) or whether the Prime Minister and Chancellor call all the policy shots through their staff. In Scotland there is no ambiguity – there are no ministries or departments and policy-making is fully concentrated in the Cabinet system run by First Minister. Over time in single-party government, networks solidify around the same people, including law officers, with the partisan actors in it (ministers and special advisers) providing a channel to the ruling party apparatus.
A related SG innovation has been to blur hierarchies and encourage direct working across grades. This had a payoff in the complaints-handling case where the Director General in the line between the Permanent Secretary and the Director of People was little involved. She was therefore able to be called in to commission IT work on interactions and produce an authoritative report of 29 December 2018, released by the SG on 2 March 2021 alongside privileged legal material forced into exposure by parliamentary pressure.
This report related the legal advice to the costs of continuing the case and the way the concession of it might be presented to the media. It stated that the Investigating Officer’s evidence at the ‘legal issues Commission and Diligence’ procedure on 21 December 2018 ‘created significant additional concern both on her credibility as a potential witness in the Judicial Review and on the events of 16 January  concerning other documents and the implications of her inability to remember that meeting’. The meeting was with a complainer before she lodged her complaint the same day. As senior counsel had e-mailed on 22 December, this left the SG ‘unable to rebut the rather obvious inferences that will otherwise be drawn from the fact that it occurred. If one needed a watershed moment when the case moved from very difficult to unstatable, this was it’.
This raises two broader issues that are not case-specific or Scotland-specific. First, the way that words can come back to haunt once the action moves from policy intention to legal interpretation. As their senior counsel advised the SG on 6 December 2018, ‘a matter of English language’ vitiated the SG’s doomed attempt to deny that their harassment procedure’s specification that the Investigating Officer ‘will have had no prior involvement with any aspect of the matter being raised’ precluded the appointment to the role of the Head of People Advice, who had been doing her job in giving advice to staff. ‘Any’ and ‘aspect’ were words of deadly breadth. It was as simple as that, as sometimes happens in judicial review cases.
The second issue is of failure to recall, document and realise the significance of relevant interactions with key actors (in this case, potential users of a policy). The multiplicity of transmission channels used – e-mails, phone calls, text messages, WhatsApp-type groups of civil servants, written notes - compounded fallibility of memory. Interactions were both forgotten and preserved and a failure to disclose them short of a diligence procedure before a QC was inevitably legally and financially devastating beyond their content.
The early March document releases were the key stages of the Holyrood committee process in illuminating Scottish devolution at work. The mystique that public authorities should enjoy professional legal privilege in the same way as litigants against them has further eroded. Crown and government lawyers claiming skill at reading the minds of judges and juries face legitimate performance appraisal when cases are lost. Using officials to investigate ministers (done at UK level as well) remains problematical; the independent Review of the Scottish Government procedure for handling complaints involving current or former Ministers, finally published on 16 March, criticised it while endorsing retrospective admission of complaints without time limit. The report drew on its own interview and documentary evidence, and chapters 2 and 3 offer an unexpectedly detailed narrative of the 2017-18 events which can be set alongside the report of the Holyrood Committee.
Image by Billy Wilson from Flickr