All living former First Ministers of Scotland – Nicola Sturgeon, Alex Salmond, Jack McConnell and Henry McLeish – have agreed to give oral evidence to Westminster’s Scottish Affairs Committee as part of its ongoing inquiry into intergovernmental relations.
The inquiry, named Intergovernmental Relations: 25 years since the Scotland Act 1998, is looking closely at the structures which underpin relations between the UK and Scottish Governments, including the new IGR framework introduced in 2022.
In sessions due to take place in the first half of 2024, MPs will have the chance to question Nicola Sturgeon, Alex Salmond, Jack McConnell and Henry McLeish on their experiences of intergovernmental relations between Edinburgh and London during each of their tenures as First Minister.
The witnesses led the Scottish Government during significant political events, including the 2014 independence referendum and the UK’s exit from the EU. The Committee will also be taking evidence from a number of former Secretaries of State for Scotland who have held the post since 1998.
So far, the inquiry has received written evidence from Tony Blair and Lord David Cameron, as well as hearing from former UK Government ministers and senior civil servants to assess whether the intergovernmental processes have delivered on the aspirations of politicians in 1998.
The Committee also questioned leading academics at the University of Glasgow and University of Stirling for their expert views on whether current intergovernmental processes are working effectively.
Alex Salmond will be questioned by the Committee on Monday 19 February.
The date of the other former First Ministers’ appearances will be confirmed in due course.
Chair of the Scottish Affairs Committee, Pete Wishart, said: “It’s a clear demonstration of the importance of this work that all living former Scottish First Ministers have agreed to appear in front of the Committee as part of the inquiry into relations between the UK and Scottish governments since 1998.
“Given that we will hear from all living former First Ministers of Scotland, we will be inviting all former UK Prime Ministers who have been in power since the implementation of the Scotland Act to appear in front of the Committee.
“I sincerely hope they will match the commitment of their Scottish Government counterparts and accept our invitation.”
COLLISION COURSE: SUPREME COURT JUDGES SAY ‘NO’ TO SCOTTISH REFERENDUM
The Scottish Government has made a reference to the Supreme Court to establish whether the Scottish Parliament has the power to hold an independence referendum.
The case was heard on the 11th and 12th of October and the verdict was made public this morning – Wednesday 23 November.
TIME FOR SCOTLAND RALLY
THE SUPREME COURT JUDGEMENT:
Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 UKSC 31
Date:23 November 2022
Justices
Lord Reed (President), Lord Lloyd-Jones, Lord Sales, Lord Stephens and Lady Rose
Background to the Appeal
The Scottish Government has drafted a Scottish Independence Referendum Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?”. Under the Scotland Act 1998 (“the Scotland Act”), the power of the Scottish Parliament to make legislation (or its “legislative competence”) is limited.
A provision of a Bill will be outside the legislative competence of the Scottish Parliament and therefore not law if it relates to the matters which have been reserved to the United Kingdom Parliament in Westminster (sections 29(1) and (2)(b)). These reserved matters include “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)).
In this reference, the Lord Advocate (the senior law officer of the Scottish Government) asks the Court whether the provision of the proposed Bill which provides for a referendum on Scottish independence would be outside the legislative competence of the Scottish Parliament because it relates to either or both of the reserved matters of the Union or the United Kingdom Parliament.
This is a legal question about the Scottish Parliament’s power to make legislation under the Scotland Act. The Court is not being and could not be asked to give a view on the distinct political question of whether Scotland should become independent from the rest of the United Kingdom.
The powers of the Scottish Parliament were not in issue during the 2014 referendum on Scottish independence. This is because, in 2013, an Order in Council under section 30(2) of the Scotland Act modified the definition of reserved matters to enable the Scottish Parliament to pass the 2014 referendum legislation. The United Kingdom Government is currently unwilling to agree to the making of another Order in Council to facilitate another referendum on Scottish independence.
The Lord Advocate’s reference was made under paragraph 34 of Schedule 6 to the Scotland Act. The Advocate General for Scotland (the Scottish law officer of the United Kingdom Government) raises two preliminary issues, namely, whether the Court can and should answer the reference.
There are consequently three questions which the Court must consider. First, is the question referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6, which would mean that the Court does not have jurisdiction to decide it. Secondly, even if it is a devolution issue, should the Court exercise its discretion to decline to accept the reference? Thirdly, if the Court accepts the reference, how should it answer the question the Lord Advocate has referred to it?
Judgment
In a unanimous judgment, the Court answers the questions before it as follows. First, the question referred by the Advocate General is a devolution issue, which means that that the Court has jurisdiction to decide it.
Secondly, the Court should accept the reference. Thirdly, the provision of the proposed Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?” does relate to matters which have been reserved to the Parliament of the United Kingdom under the Scotland Act.
In particular, it relates to the reserved matters of the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom.
Accordingly, in the absence of any modification of the definition of reserved matters (by an Order in Council or otherwise), the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.
Reasons for the Judgment
Issue 1: Is the question referred by the Lord Advocate a devolution issue?
Only a “devolution issue” can be referred to the Court under paragraph 34 of Schedule 6 to the Scotland Act. The term “devolution issue” is defined by paragraph 1 of Schedule 6. Under paragraph 1(f), it includes “any other question arising by virtue of this Act about reserved matters” [13-14]. The Court concludes that the question referred by the Lord Advocate falls within this description and is therefore a devolution issue which the Court has jurisdiction to decide [47].
In reaching this conclusion, the Court holds, first, that the question referred is one “arising by virtue of” the Scotland Act because it is a question which arises under section 31(1) for the person wishing to introduce the Bill into the Scottish Parliament [16]. That person is required, on or before the Bill’s introduction, to give a statement confirming that, in their view, the provisions of the Bill would be within the legislative competence of the Scottish Parliament [9]. Secondly, the existence of the separate scheme for the scrutiny of Bills for legislative competence by the Court in section 33 of the Scotland Act does not prevent a reference from being made under paragraph 34 of Schedule 6 in relation to a proposed Bill, before it is introduced [21-27]. Thirdly, the terms of paragraph 1(f) of Schedule 6 are very wide. They are intended to sweep up any questions arising under the Scotland Act about reserved matters which are not covered elsewhere [37-42]. Fourthly, it is consistent with the rule of law and with the intention of the Scotland Act that the Lord Advocate should be able to obtain an authoritative judicial decision on the legislative competence of the Scottish Parliament in advance of the introduction of a Bill [44-46].
Issue 2: Should the Court decline to accept the Lord Advocate’s reference?
The Court concludes that it should accept the reference [54]. The reference has been made in order to obtain an authoritative ruling on a question of law which has already arisen as a matter of public importance. The Court’s answer will determine whether the proposed Bill is introduced into the Scottish Parliament. The reference is not therefore hypothetical, academic or premature [53].
Issue 3: Does the proposed Bill relate to reserved matters?
The question whether the provision of the proposed Bill which provides for a referendum on Scottish independence would relate to matters which have been reserved to the United Kingdom Parliament under the Scotland Act (section 29(2)(b)) is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances (section 29(3)) [56-57], [70], [75].
A provision will relate to a reserved matter if it has something more than a loose or consequential connection with it [57], [71-72]. The purpose and effect of the provision may be derived from a consideration of both the purpose of those introducing the legislation and the objective effect of its terms [73]. Its effect is not restricted to its legal consequences [74].
Applying this test, the reserved matters which are relevant here are “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)). The latter reservation includes the sovereignty of the United Kingdom Parliament [76]. The purpose of the proposed Bill is to hold a lawful referendum on the question of whether Scotland should become an independent country, that is, on ending the Union and the sovereignty of the United Kingdom Parliament over Scotland [77], [82]. The Bill’s effect will not be confined to the holding of the referendum. Even if the referendum has no immediate legal consequences, it would be a political event with important political consequences [78-81]. It is therefore clear that the proposed Bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the United Kingdom Parliament. Accordingly, the proposed Bill relates to reserved matters and is outside the legislative competence of the Scottish Parliament [82-83], [92].
The Scottish National Party (intervening) made further written submissions founded on the right to self–determination in international law and the principle of legality in domestic law [84]. The Court rejects these submissions, holding that the right to self–determination is not in issue here [88-89] and does not require a narrow reading of “relates to” in section 29(2)(b) so as to limit the scope of the matters reserved to the United Kingdom Parliament under the Scotland Act [90]. Similarly, the allocation of powers between the United Kingdom and Scotland under the Scotland Act does not infringe the principle of legality [91].
References in square brackets are to paragraphs in the judgment
Note
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available online. Decided cases
The UK Supreme Court has today determined that the draft Scottish Independence Referendum Bill is outside the powers of the Scottish Parliament.
The Secretary of State for Scotland, Alister Jack, said that the UK Government was committed to working with the Scottish Government on the issues that matter most to people in Scotland.
Alister Jack said: “We note and respect the unanimous ruling from the Supreme Court today.
“People in Scotland want both their governments to be concentrating all attention and resources on the issues that matter most to them. That’s why we are focussed on issues like restoring economic stability, getting people the help they need with their energy bills, and supporting our NHS.
“Today alone, 11.6 million UK pensioners – around one million in Scotland – are starting to receive up to £600 to help with their energy bills this winter.
“As the Prime Minister has made clear, we will continue to work constructively with the Scottish Government in tackling all the challenges we share and face.”
NICOLA STURGEON’s RESPONSE:
“Earlier today, the Supreme Court delivered its judgment on the Lord Advocate’s reference, seeking clarity on whether or not the Scotland Act 1998 allows the Scottish Parliament to legislate for a referendum on independence.
“First of all – while I am obviously very disappointed by it – I respect and accept the judgment of the Court. In securing Scotland’s independence we will always be guided by a commitment to democracy and respect for the rule of law.
“That principle also reflects a practical reality – the route we take must be lawful and democratic for independence to be achieved. And as is becoming clearer by the day, achieving independence is not just desirable – it is essential if Scotland is to escape the disaster of Brexit, the damage of policies imposed by governments we don’t vote for, and the low growth, high inequality economic model that is holding us back.
“However, we must be clear today that the Supreme Court does not make the law – it interprets and applies it. If the devolution settlement in the Scotland Act is inconsistent with any reasonable notion of Scottish democracy – as is now confirmed to be the case – that is the fault of Westminster lawmakers, not the justices of the Supreme Court.
“In addressing the implications of today’s ruling, it is also important to be mindful of what the Court was not asked to decide and therefore what the ruling does not tell us.
“The Court was not asked to decide if there is a democratic mandate for a referendum. The mandate and parliamentary majority for a referendum is undeniable.
“Nor was the Court asked if Scotland should be independent. Only the Scottish people can be the judge of that. And it was not asked if there is any democratic means by which Scotland can choose independence.
“The question the Court was asked to decide – the only question the court could reasonably answer – was a narrower one. Would a Bill providing for an advisory referendum on independence be within the current powers of the Scottish Parliament?
“In other words, can the Scottish Parliament legislate for an independence referendum without the prior agreement of Westminster? The Court has answered that question in the negative.
“It has determined that under the Scotland Act 1998 – which encapsulates the current devolution settlement – even an advisory referendum asking the question “Should Scotland be an independent country?’ is a matter reserved to the Westminster Parliament.
“What that means is that without an agreement between the Scottish and UK governments for either a section 30 Order or a UK Act of Parliament to change its powers, the Scottish Parliament cannot legislate for the referendum the people of Scotland have instructed it to deliver.
“That is a hard pill for any supporter of independence – and surely indeed for any supporter of democracy – to swallow. However, as I said back in June when I informed Parliament that the Lord Advocate had agreed to make this reference, it was always the case that in the absence of an agreement with the UK government, the question of the Scottish Parliament’s competence in relation to a referendum would end up in the Supreme Court – if not before legislation then certainly after any decision by Parliament to pass a Bill.
“So while it is a statement of the obvious that this is not the outcome I hoped for, it does give us clarity. And having that clarity sooner rather than later allows us now to plan a way a forward, however imperfect it might be. Now, I am enough of a realist to know that the immediate questions posed by today’s judgment will be for me and the SNP.
“I am also long enough in the political tooth to expect some triumphalism on the part of unionist politicians. However, unionists of a more thoughtful disposition will, I suspect, know that to be misguided.
“Indeed, they will have been hoping that the Court – as the UK government asked it to do – would have declined to answer the substantive question today.
“That is because they will understand that this judgment raises profound and deeply uncomfortable questions about thebasis and future of the United Kingdom. Until now, it has been understood and accepted – by opponents of independence as well as by its supporters – that the UK is a voluntary partnership of nations.
“The Royal Commission on Scottish Affairs back in 1950 said this: “Scotland is a nation and voluntarily entered into the Union as a partner”.
“That sentiment was echoed nearly 60 years later by the cross-party Calman Commission which described the UK as “a voluntary union and partnership”.
“And it was reinforced in 2014 by the Smith Commission which made clear that “nothing in its report prevented Scotland becoming an independent country should the people of Scotland so choose”.
“What today’s ruling tells us, however, is that the Scotland Act does not in fact uphold that long held understanding of the basis of the relationships that constitute the UK – on the contrary, it shatters that understanding completely.
Let’s be blunt: a so-called partnership in which one partner is denied the right to choose a different future – or even to ask itself the question —cannot be described in any way as voluntary or even a partnership at all. So this ruling confirms that the notion of the UK as a voluntary partnership of nations is no longer, if it ever was, a reality.
“And that exposes a situation that is quite simply unsustainable. In the words of former Tory Prime Minister, John Major: ‘No nation could be held irrevocably in a Union against its will’.
“Indeed, perhaps what today’s judgment confirms more than anything else, is that the only guarantee for Scotland of equality within the British family of nations is through independence – that fact is now clearer than ever before.
“The immediate question, of course, is what happens now. Obviously, I am making these remarks just a couple of hours after the Court issued its judgment.
“While the terms and import of the judgment are clear it will still be important to absorb and consider it fully. I think it is safe to predict that this will not be my last word on the matter.
“However, my initial views – building on what I said in June – are as follows. First of all, it is worth repeating that the Court judgment relates to one possible route to Scotland making a choice on independence – a referendum Bill in the Scottish Parliament without Westminster agreement.
“While it is absolutely the case – if the UK was a voluntary partnership – that this would not be needed, it remains open to the UK government, however belatedly, to accept democracy and reach agreement.
“I make clear again today, therefore, that I stand ready at any time to reach agreement with the Prime Minister on an adjustment to the devolution settlement that enables a lawful, democratic referendum to take place – a process that respects the right of people in Scotland to choose their future, in line with the mandate of the Scottish Parliament, lets politicians make the case for and against independence and, crucially, allows the Scottish people to decide.
“What I will not do is go cap in hand. My expectation, in the short term at least, is that the UK government will maintain its position of democracy denial. That position is, in my view, not just unsustainable – it is also utterly self-defeating.
“The more contempt the Westminster establishment shows for Scottish democracy, the more certain it is that Scotland will vote Yes when the choice does come to be made.
“As for that choice – and for the avoidance of any doubt – I believe today, just as I did yesterday, that a referendum is the best way to determine the issue of independence.
“The fact is, the SNP is not abandoning the referendum route. Westminster is blocking it. And in that scenario, unless we give up on democracy – which I, for one, am not prepared to do – we must and will find another democratic, lawful and constitutional means by which the Scottish people can express their will.
“In my view, that can only be an election. The next national election scheduled for Scotland is the UK General Election, making it both the first and the most obvious opportunity to seek what I described back in June as a de facto referendum.
“As with any proposition in any party manifesto in any election, it is up to the people how they respond. No party can dictate the basis on which people cast their votes. But a party can be – indeed should be – crystal clear about the purpose for which it is seeking popular support.
“In this case, for the SNP, it will be to establish – just as in a referendum – majority support in Scotland for independence, so that we can then achieve independence. That, then, is the principle.
“However, now that the Supreme Court’s ruling is known, and a de facto referendum is no longer hypothetical, it is necessary to agree the precise detail of the proposition we intend to put before the country – for example, the form our manifesto will take, the question we will pose, how we will seek to build support above and beyond the SNP, and what steps we will take to achieve independence if we win.
“As you would expect, I have views on all of that. However, given the magnitude of these decisions for the SNP, the process of reaching them is one that the party as a whole must be fully and actively involved in.
“I can therefore confirm that I will be asking our National Executive Committee to convene a special party conference in the new year to discuss and agree the detail of a proposed de facto referendum.
“In the meantime, the SNP will launch and mobilise a major campaign in defence of Scottish democracy. For we should be in no doubt – as of today, democracy is what is at stake. This is no longer just about whether or not Scotland becomes independent – vital though that decision is.
“It is now more fundamental – it is now about whether or not we have the basic democratic right to choose our own future. Indeed, from today, the independence movement is as much about democracy as it is about independence.
“To conclude, I am well aware that there will be a real sense of frustration and disappointment today in both the SNP and the wider movement. I share it. My message, though, is this: while that is understandable, it must be short lived. And I believe it will be.
“Indeed, I suspect we will start to see just how short lived in the strength of the gatherings planned for later today in Edinburgh and other parts of Scotland. The fact is we have work to do.
“The case for Scotland becoming independent is more compelling and urgent than ever. Independence is now essential because of what Westminster control means, on a day-to-day basis, for people in this country, and for future generations.
“Thanks to Westminster control, the UK economy is in crisis – and we are entering a new age of Tory austerity. Low-income households in the UK are now 22 per cent poorer than their counterparts in France, and 21 per cent poorer than in Germany.
“To put that in context – it means the living standards of the lowest-income households in the UK are £3,800 lower than their French equivalents. Thanks to Westminster control, we are subject to an immigration and asylum system that neither works in practice, nor serves our need to grow our population.
“It mistreats those who come to our shores looking for sanctuary from oppression, and deprives us of the talents and taxes of those who want to live, work and contribute to our country. Thanks to Westminster control, even the limited measure of self-government that devolution provides is no longer guaranteed.
“The steady erosion of the powers of our Parliament, the undermining of the Sewel Convention, the imposition of the UK Internal Market Act, and now the Retained EU law Bill.
“And if we stick with Westminster control we are stuck outside the European Union permanently. And that comes at a heavy cost.
“According to the Office for Budget Responsibility, Brexit will mean in the long-run a fall in national income of 4 per cent compared with EU membership. That is equivalent to a cut in public revenues in Scotland of £3.2 billion.
“All the main Westminster parties now support a Brexit that Scotland did not vote for. And the Brexit conspiracy of silence that exists between them means the UK economy will become weaker, and people will pay a heavier and heavier price.
“That price will be paid in hard economic terms – but also in the narrowing of horizons and loss of opportunities for the generations to come. Scotland can do better than this.
“The example of independent countries across Europe and the world, many with nowhere near the assets and strengths we have, tells us that loudly and clearly. We hear from Westminster that what is needed is stability.
“But let’s be clear – the Westminster system has shown that it is not capable of securing stability. The people relying on food banks are not being offered stability.
“Those across our country afraid to switch on their heating are not being offered stability. The businesses struggling with Brexit are not being offered stability. The young people denied the rights and opportunities of EU membership are not being offered stability.
“A UK economic model which delivers low growth and low productivity coupled with sky high rates of poverty and inequality does not, and never will offer stability. Scotland can do so much better. So, yes, of course, this judgment is a disappointment. But it is not one we can or will wallow in.
“Indeed, getting the judgment now rather than later gives us the clarity we need to plot a definite way forward. Fundamentally, our job today is the same as it was yesterday. It is to persuade a majority of the Scottish people of the fact that independence is the best future for Scotland – and ensure a democratic process that allows majority support to be established beyond doubt.
“That job is not easy, I know – on some days, like today perhaps, it feels more difficult than ever. But nothing – nothing – worth doing is ever easy. There is no doubt in my mind that independence will be worth it. And my resolve to achieve independence is as strong as it has ever been. Indeed, it is if anything even stronger. Prosperity, equality, internationalism – and now, without any doubt, the very democracy of our nation – depends on independence.”
Alex Salmond: ‘BBC are an affront to Scottish democracy’
ALBA has returned to Ofcom with new evidence of BBC bias in the election campaign.
In a further complaint to the broadcasting regulator (below) ALBA detail the different criteria to debates and coverage being applied by BBC Wales where the Abolish the Welsh Assembly Party were accorded full participation in the debates programme.
ALBA leader Alex Salmond said: “The BBC are an affront to Scottish democracy. There have now been no less than seven opinion polls in this campaign showing an ALBA parliamentary breakthrough.
“The new evidence from Wales leaves them without a leg to stand on in terms of their biased Scottish coverage. But BBC bosses continue to ban us from the debates.
“The BBC also continue to refuse fair coverage on the flimsiest of grounds.
“Yesterday (Sunday) for example in one of the most important statements of the campaign ALBA women candidates rallied outside the Parliament in the declaration in support of protected sex based rights.
“The BBC claimed they couldn’t send a camera a few hundred yards because it was a Bank holiday weekend! They then interviewed Willie Rennie in the same area up a hill on his puff saying precisely zilch.
“Of course BBC presenters continue to talk about ALBA, often in disparaging terms. They just don’t allow us on to answer back just as the BBC hierarchy have kept us out of the leaders debates.
“In the last few days of the election the ALBA street and community initiatives will gain further ground and the BBC attempt to silence ALBA will fail.
“However as our letter to Ofcom makes clear the regulator should step in right now and put the BBC house in order.”
LETTER TO OFCOM
Dear Ms. Rose,
Our clients have considered the terms of the Election Committee’s decision of 28 April. We write to invite the Committee to reconsider that decision and to review matters urgently.
Our clients consider that the evidence of a structural bias within the BBC against them grows stronger as the campaign progresses and reaches its conclusion and further examples have occurred since the Committee’s decision.
The treatment by the BBC of other parties is simply inconsistent with its treatment of our clients. On Thursday of last week, the day after the Committee’s decision, the BBC broadcast the equivalent Leaders Debate as part of its coverage of the elections to the Welsh Senedd. Representatives of the Labour, Conservative, Plaid Cymru, Liberal Democrats and Abolish the Welsh Assembly parties participated in the first hour of that programme and those of Reform UK, the Green Party and UKIP in the second, half-hour part (https://www.bbc.co.uk/news/uk-wales-politics-56915347).
The Liberals currently have one seat in the Senedd and are averaging around 4% in current polling. The Greens have no seats and are averaging around the same. UKIP support in Wales is so low that it has not even registered on the last two polls. The AWAP is currently predicted to take two seats in the Senedd. Reform UK is averaging 1% in the polls and is predicted to take no seats
We set out an extract from the BBC’s 2021 Guidelines, applicable to Wales, in the undernote below, highlighting sections relating to “larger” and “smaller” parties. We would submit that our clients’ polling performance, and the developing political context in Scotland, is such that it would be simply perverse to exclude them from the upcoming BBC Leaders Debate.
A decision to do so would be simply illogical, entirely inconsistent with the treatment afforded to other parties elsewhere across the BBC’s output and simply inexplicable other than by animus towards our clients. What other possible explanation can be proffered for such an entirely inconsistent approach? No single example of that animus is going to be conclusive and any single example can be explained away but we would submit that that does not mean that each example can simply be ignored.
Some regard must be had to the pattern provided by the totality of each single example. An emblematic example of the BBC’s attitude towards our clients occurred yesterday. A number of our clients’ women candidates met outside the Holyrood Parliament building to publicise our clients’ policies on women’s rights. Our clients spoke in advance to the BBC about coverage of that event. The BBC explained that it would not be able to cover it as it did not have a camera in the area yet it managed, our clients later noted, to give coverage, in the same location, of the Liberals’ Willie Rennie.
We would submit that the behaviour of the BBC shows quite clearly that it is ignoring, and suggests that without intervention it will continue to ignore, the very clear exhortation in the Committee’s decision that it (the BBC) must, in short, keep matters under review to ensure that in determining the level and nature of the coverage which it gives our clients it gives proper weight and consideration to the developing political context in Scotland.
In addition to the matters outlined above, however, our clients are dissatisfied with certain aspects of the decision itself. They have obtained the opinion of Counsel on matters.
Our clients (and we) were surprised that the BBC, having decided not to take up the Committee’s invitation to be present at the substantive hearing, and to make oral representations at the same time and in the same forum as our clients, were nevertheless provided with details of Mr. Salmond’s extemporaneous submission and given a chance to comment, extensively, on it and to submit further material to the Committee.
Over and above that, Counsel’s advice is that the Committee’s decision is in error and susceptible to judicial review. His view is that the terms of paragraphs 3.20 and 3.21 are clearly erroneous and that the terms of the latter are self-contradictory. The 2017 changes expressly abandoned not just the list of larger parties but the whole concept of larger parties and the whole concept of having a list of them. The BBC in its own submissions supported that abandonment of these concepts. None of that makes any sense if the point was, as the second sentence of paragraph 3.21 asserts, simply to allow broadcasters to come up with their own definitions of “larger parties” and make their own lists of them.
If that had been the intention or purpose, there would have been no mention of concept, rather than the constant repetition of it which in fact features as part of the 2017 document. All that would have been needed was a simple statement that Ofcom would no longer be deciding who the “larger parties” were or providing a list of them and that it would be up to individual broadcasters to do so if they wanted to continue to use the concept.
It may be true, as asserted at paragraph 3.21, that the BBC using concepts which have been specifically discontinued by Ofcom (supported by the BBC) does not in itself contradict the Code, although in Counsel’s view even that is arguable.
What is undoubtedly true, in his opinion, is that in the specific case of the Alba Party the use of those discontinued and disapproved concepts by the BBC has caused a view to be taken of the appropriate coverage to be given which would not have been taken had those disapproved concepts not been applied.
Counsel does not accept that the approach taken by the BBC can be separated from what is required directly by the Code as easily as the Committee decision asserts. In fact, in his view, it cannot be separated at all. His view is that this flawed approach taints the whole Committee process and makes the outcome of it unfair.
Counsel also believes that Ofcom should not have gone back to the BBC after Mr. Salmond’s oral submission as the BBC had already indicated that their participation in the process was concluded.
He also points out that Ofcom selected a day at random and then based little or nothing in its decision on what actually happened on that day. The selection of a random day was a method of approaching things proposed by Ofcom and yet the results produced were then ignored or explained away as unrepresentative.
This is completely illogical. To ignore the fact that our clients did not feature at all on this random day in effect breaches the process which the Committee itself prescribed, negates its whole point and fails to recognise that the coverage on this random day in fact wholly vindicates our clients’ basic argument that they are unfairly treated by use of the disapproved concepts of “larger” and “smaller” parties rather direct application of the present Ofcom Code.
Counsel feels that the BBC’s admission of the AWAP, a party which he feels is comparable by analogy to our clients, into the equivalent debate in Wales is significant. Appendix 3 of the BBC guidance says in terms that AWAP can be given coverage “proportionate” to the four “larger parties” in Wales under certain circumstances but the BBC has failed to take a similar view of Alba. As a result, Counsel feels that even in terms of their own flawed guidance the BBC has acted inconsistently.
As we say, in light of all this, our clients are dissatisfied at the BBC’s continuing decision to exclude them from the upcoming Leaders Debate and we would ask that the Committee urgently reconsiders matters in light of the new material which we present and of the submissions made in this letter. Failing that, we will require to take our clients’ urgent instructions o the options for judicial review which Counsel advises are open to them.
TheScottish Government says lessons will be learned from the Scottish Government’s handling of harassment complaints, following the publication yesterday of the parliamentary inquiry’s report.
Responding to the findings of the Committee on the Scottish Government’s Handling of Harassment Complaints (SGHHC), Deputy First Minister John Swinney said it was clear that the women who had raised complaints had been let down.
Deputy First Minister John Swinney said: “I welcome the report of the Committee, which, alongside the independent report produced by James Hamilton and externally led review by Laura Dunlop QC, will assist the Scottish Government’s in learning lessons for the future.
“I also welcome the Committee’s acknowledgement that the Scottish Government was motivated by doing the right thing – creating a culture and procedure for investigating any claims of harassment.
“I agree with the Committee’s finding that James Hamilton’s report is the most appropriate place to address the question of whether or not the First Minister breached the Ministerial Code. He found there was no breach.
“The Scottish Government has acknowledged that it made mistakes and that these led to the Judicial Review being conceded, and I know that this had a real, and damaging, impact for the women who raised the complaints. We have apologised for this and we do so unreservedly again today.
“I remain absolutely determined that the Scottish Government should ensure this does not happen again and that together we create a culture where these behaviours do not arise.
“Given the timing of the report it is not possible to respond fully and in detail, not least because the three reports have overlapping areas of interest, and some recommendations are in conflict with those in other reports.
“Together, all three reports highlight a range of important issues and provide the basis for improvement work which now be taken forward in consultation with others including the Parliament, Trades Unions, and those with lived experience.
“The Scottish Government will carefully consider the recommendations from the Committee, alongside the other two review reports, in order to put improvements and an implementation plan in place.”
Mr Swinney chose not to address the committee’s contention that the First Minister mislead parliament, referring instead to Mr Hamilton’s findings.
But the Hamilton report clearly states: “It is for the Scottish Parliament to decide whether they were in fact misled”.
The committee DID decide … and found the First Minister guilty.
Mr Hamilton also expressed ‘deep frustration’ at redactions made to his report.
In a note accompanying the published report he stated: “A redacted report that effectively erases the role of any such individual in the matters investigated in the report cannot be understood by those reading it, and presents an incomplete and even at times misleading version of what happened.
“It is therefore impossible to give an accurate description of some of the relevant events dealth with in the report while at the same time complying with the court orders.
“I am deeply frustrated that applicable court orders will have the effect of preventing the full publication of a report which fulfils my remit and which I believe it would be in the public interest to publish.”
The Conservatives, the biggest opposition party at Holyrood, initiated a vote of No Confidence in the First Minister, but with the Greens supporting the government – and both Labour and the Lib Dems abstaining – the Tory motion was doomed to failure.
Nicola Sturgeon will face her final First Minister’s Questions session of this parliament later today; I wonder what the questions will be about!
Then, the next test comes in six weeks time when Scotland goes to the polls in the Holyrood elections.
Former First Minister Alex Salmond will give evidence to the Committee on the Scottish Government’s Handling of Harassment Complaints at Holyrood this afternoon.
The Committee’s remit is 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.
In a formal submission to the committee, Mr Salmond maintains that senior members of the SNP colluded with civil servants in an orchestrated campaign to damage his reputation.
He also accuses First Minister Nicola Sturgeon of both misleading parliament and breaking the Ministerial Code. If this is proven, Ms Sturgeon would be expected to resign.
Ms Sturgeon yesterday dismissed Salmond’s claims as ‘a litany of nonsence’.
This is much more serious than a ‘he said, she said’ internal SNP stooshie: the allegations go right to the heart of Scotland’s democratic structures.
So the stakes couldn’t be higher. It remains to be seen whether today’s session will see us inch any closer to the truth …
Alex Salmond’s final submission to Wednesday’s committee inquiry has been published.
It’s quite a document, and on reading it you can understand why some people have done their damndest to make sure it never saw the light of day.
Take this, for example:
“I leave it to others the question of what is, or is not, a conspiracy but am clear in my position that the evidence supports a deliberate, prolonged, malicious and concerted effort among a range of individuals within the Scottish Government and the SNP to damage my reputation, even to the extent of having me imprisoned.
“The individuals, for the avoidance of doubt: Peter Murrell (Chief Executive), Ian McCann (Compliance Officer) and Sue Riddick (Chief Operating Officer) of the SNP, together with Liz Llloyd, the First Minister’s Chief of Staff.
There are others who, for legal reasons, I am not allowed to name.”
First Minister Nicola Sturgeon has confirmed that she has referred herself to the panel of independent advisers on the Ministerial Code.
The panel will look at the First Minister’s actions during an investigation into Alex Salmond.
Nicola Sturgeon made phone calls and had meetings with Mr Salmond while claims of sexual harassment – which he strongly denies – were being investigated.
Scottish Government breached it’s own rules during Salmond investigation
Statement from Permanent Secretary at the Scottish Government Leslie Evans:
Lawyers for the Scottish Government and for Alex Salmond have this morning informed the Court of Session that his action has been settled and the Court has approved that settlement.
As part of the settlement, I have accepted that the decision reached after the investigation of two complaints made against Mr Salmond should be set aside.
This action is being taken because it has become clear that, in one respect only (albeit an important one), the investigation was procedurally flawed.
However, it is important to stress that this relates to the operational application of the Procedure for Handling Complaints Involving Current or Former Ministers (‘the Procedure’). The Scottish Government considers the Procedure itself to be robust and it remains in place.
After reassessing all the materials available, I have concluded that an impression of partiality could have been created based on one specific point – contact between the Investigating Officer and the two complainants around the time of their complaints being made in January 2018.
The full picture only became evident in December 2018 as a result of the work being undertaken to produce relevant documents in advance of the hearing.
I want to apologise to all involved for the failure in the proper application of this one particular part of the Procedure. There is nothing to suggest that the Investigating Officer did not conduct their duties in an impartial way.
Unfortunately, the interactions with the complainants in advance of the complaints being made meant that the process was flawed, however impartially and fairly the Investigating Officer conducted the investigation.
All the other grounds of Mr Salmond’s challenge have been dismissed.
The Scottish Government has acted in good faith at all times and will continue to do so. It was right and proper that these complaints were investigated and I stand by the decision to carry out that investigation.
It is also important to note that the procedural flaw in the investigation does not have implications, one way or the other, for the substance of the complaints or the credibility of the complainers. The Judicial Review was never about the substance of the complaints, but about the process that took place to investigate those complaints.
It is accordingly open to the Scottish Government to re-investigate the complaints and, subject to the views of the complainants, it would be our intention to consider this – however, this will only be once ongoing police inquiries have concluded.
Meantime I have commissioned an internal review of the specific application of this one element of the procedure. We shall learn and apply the lessons of this case to any future complaint addressed under our internal procedure.
My priority remains the duty of care to my staff, including anyone in the organisation who brings forward any concerns about inappropriate conduct, regardless of the identity or seniority of the individual complained about.
Finally I would reiterate that the single procedural flaw which led to this decision is deeply regrettable. In particular, I regret the distress it will cause to the two women who raised the complaints.
Former First Minister of Scotland Alex Salmond will give a special lecture to celebrate the Saltire Society’s 80th anniversary at the Royal Society of Edinburgh tonight.
Entitled ‘Inspiring Scotland – 80 years of the Saltire Society’, Mr Salmond’s lecture will focus on the history of the Saltire Society and its varied contribution to Scotland’s public life, culture and society since being set up in 1936. As part of the lecture, Mr. Salmond will also consider what Scotland’s future might hold and its changing place in the world.
Ahead of the lecture, Mr Salmond said: “The Saltire Society is a superb collective where Scottish culture is preserved, nurtured and most importantly, enjoyed, across the globe. As we approach a century of their great work, I am thrilled to be able to host this event and look back on eighty years of Comann Crann na h-Alba. Long may their work – and celebrating everything it means to be Scottish – continue.”
Alex Salmond was first elected as an SNP MP for Banff and Buchan in 1987 and first became leader of the SNP in 1990. He was elected First Minister of Scotland following the 2007 Scottish Parliament elections in which the SNP beat Labour into second place and became the largest single Parliamentary party. He then led a minority SNP administration until the 2011 Scottish Parliament elections, at which the SNP won an overall majority.
He led negotiations on the terms of the 2014 Referendum on Scottish Independence. On the day after the referendum vote, he announced his intention to resign as Leader of the SNP and as First Minister immediately following the SNP’s Annual Conference in November 2014, where he was succeeded as SNP Leader and First Minister by Nicola Sturgeon. He is currently MP for Gordon where he won 48% of the constituency vote at the 2015 UK General Election.
Jim Tough, Executive Director of the Saltire Society, said: “We are very excited to announce that former First Minister of Scotland Alex Salmond will be addressing the Saltire Society on its 80th anniversary. We are enjoying an extremely busy year of events, awards, and lectures to celebrate 80 years of the Saltire Society and I believe this will be another great highlight.
“I am very much looking forward to what I’m sure will be a fascinating and thought-provoking lecture and would encourage anyone interested to come along and join the audience for what is bound to be a very popular event.”
The lecture will take place at 6.30pm tonight at The Royal Society of Edinburgh, 22-26 George Street.
First Minister Alex Salmond is to step down following defeat for the Yes Scotland campaign in the independence referendum.
Mr Salmond told party members: “I have has announced my intention to stand down as SNP Leader at the Party’s Annual Conference in November and then as First Minister when the SNP have elected the next Leader following a membership ballot. My statement to the nation, made a few moments ago at Bute House, is as follows:
“I am immensely proud of the campaign which Yes Scotland fought and of the 1.6 million voters who rallied to that cause by backing an independent Scotland.
“I am also proud of the 85 per cent turnout in the referendum and the remarkable response of all of the people of Scotland who participated in this great constitutional debate and the manner in which they conducted themselves.
“We now have the opportunity to hold Westminster’s feet to the fire on the “vow” that they have made to devolve further meaningful power to Scotland. This places Scotland in a very strong position.
“I spoke to the Prime Minister today and, although he reiterated his intention to proceed as he has outlined, he would not commit to a second reading vote by 27th March on a Scotland Bill. That was a clear promise laid out by Gordon Brown during the campaign. The Prime Minister says such a vote would be meaningless. I suspect he cannot guarantee the support of his party.
“But today the point is this. The real guardians of progress are not the politicians at Westminster, or even at Holyrood, but the energised activism of tens of thousands of people who I predict will refuse meekly to go back into the political shadows.
“For me right now , therefore there is a decision as to who is best placed to lead this process forward politically.
“I believe that in this new exciting situation, redolent with possibility, Party, Parliament and country would benefit from new leadership.
“Therefore I have told the National Secretary of the SNP that I will not accept nomination to be a candidate for leader at the Annual Conference in Perth on 13th-15th November.
“After the membership ballot I will stand down as First Minister to allow the new leader to be elected by due Parliamentary process.
“Until then I will continue to serve as First Minister. After that I will continue to offer to serve as Member of the Scottish Parliament for Aberdeenshire East.
“It has been the privilege of my life to serve Scotland as First Minister. But as I said often during the referendum campaign this is not about me or the SNP. It is much more important than that.
“The position is this. We lost the referendum vote but can still carry the political initiative. More importantly Scotland can still emerge as the real winner.”
