Committee on the Scottish Government Handling of Harassment Complaints
Dear Ms Fabiani and Committee Members,
We have now had the opportunity to consult on Friday evening and over the weekend with our client on your clerk’s latest emails of Friday afternoon. Those followed the convener’s letter informing us that you do not intend to publish our client’s submission on the Ministerial Code, a submission which was sent to you on December 31st and which was carefully considered by this firm, and by Counsel, prior to submission.
Your latest communications and the decision not to publish exemplify the confusion and legal difficulties created by the Committee and which now plainly undermine the capacity of the Committee to fulfil the remit set by Parliament.
It must be clear to you that our client cannot accept a position where his evidence submitted in good faith to your Committee (and in greater part still publicly available) is not to be published and therefore form part of the evidence leading to conclusions in your report. The submission was not simply for James Hamilton’s Inquiry. It was also specifically to address Part 4 of your Inquiry on the Ministerial Code and was framed entirely to assist you in fulfilling the remit given to you by Parliament. The latest emails seeking to clarify the position do not assist. Our client is still in the dark about the parameters of his evidence and what assurances and protections you can provide to him to enable him help you to fulfil your remit, while being truthful and transparent.
Asking a witness to accept the constraints of speaking only to evidence selected by you on the undisclosed advice and direction of unidentified others is not acceptable in any forum and is, in our client’s view, particularly offensive when the remit he seeks to address has been set for you by Parliament and addresses the unlawful actions of an elected Government and the needless squandering of hundreds of thousands of pounds of public money.
You advise that there are ‘elements’ of the submission which can be spoken to in oral evidence or in the opening statement. Which elements? You offer one example (the leak to the Daily Record). Which other elements are deemed acceptable?
Simultaneously, you appear to have identified specific elements which are problematic. Please set those out in writing, together with the legal basis for that stance. In the absence of such clarity, we are no further forward in advising our client. Not only does clarity require to be given in relation to oral evidence, but it also necessarily informs the content of his written submission. It is at present entirely unclear to us what he is able to submit and what you view as unacceptable.
Even your suggestion of a ‘detailed opening statement’ is immediately subject to the caveat of complying with the Committee’s approach to evidence. That is meaningless until we understand what interpretation of the Section 11 order (the key barrier as we understand it) you are taking.
Similarly, why would a ‘supplementary submission’ made after a hearing have any more chance of being published by you, and relied upon by the committee in its deliberations, than the initial submission you have already refused to publish?
Beyond that, there is the obvious question of what legal advice could possibly justify the absurd position of our client being told he can essentially read out or repeat ‘elements’ of a submission but that the same elements (freely available to all online at ‘The Spectator’) cannot be published.
You advise that legal advice cannot be published or shared to support the stance the Committee has taken on this matter of overwhelming public interest. I am sure the irony of that will not have escaped you. Regardless, what is required is an understanding of your legal advice so that we can assess that, respond to it and advise in light of it.
Given the importance of this, a telephone call is not sufficient. Your position needs to be set out in writing to ensure clarity.
There are other matters which require a definitive and urgent response.
We have written on numerous occasions on this matter without substantive reply.
We require to advise our client ahead of his proposed evidence session. In order to do so, we need fully to understand all restrictions placed on his evidence and the legal bases therefor. Accordingly, we need you to set out the totality of the restrictions upon him. For example, which chapters of evidence are restricted or excluded, what reference can be made to the existence and content of documents which are known to exist but which the Committee has not recovered, which individuals or meetings is our client prevented from referencing? Which other prohibitions are in place?
The committee, on its own unpublished legal advice has attached a series of restrictions on evidence without offering either a comprehensive list of such restrictions or any legal advice which supports them. The effect is that we, as legal advisers, are left in the dark and are severely hampered in any advice that we can give. No body taking evidence can seriously expect a witness in the position of our client to do so blind to the full range of prohibitions, restrictions and penalties of even an inadvertent breach.
We note, for example, that the evidence of Geoff Aberdein has been withdrawn in its entirety and will form no part of the Committee’s deliberations. We do not know why or which parts of that evidence have led to that decision. We do not understand why the entirety of that submission had to be withdrawn. We understand the same will apply to at least one and probably more of the submissions made by our client. Further, we understand that limited or possibly no evidence is to be allowed in relation to specific meetings in March and April 2018, many of which are in the public domain and have been since January 2019. Moreover, the evidence given by the First Minister will similarly be restricted, a remarkable position which fundamentally undermines the value of the committee investigation.
In addition it is now claimed in today’s Sunday Mail that evidence sessions from “senior officials” are no longer to take place because of legal restrictions being placed on your Committee. What are these legal restrictions, which senior officials are involved, and how does the exclusion or absence of such evidence affect our client’s evidence and indeed the Committee’s own remit to “consider and report on the actions of the First Minister, Scottish Government officials and special advisers”?
These are only examples and we do not understand either the extent of these restrictions or the legal advice on which the Committee is proceeding which underpins them. In order to advise our client properly, we require clarity on the totality of the restrictions. We require very specific direction on this. A generic reference to a court order is not sufficient. We have advised you on many occasions that our client is fully aware of that Order (he was in court when it was made and indeed did not oppose it) and has been fully compliant with it. We are perplexed by the Committee’s interpretation of that order in relation to much of the evidence, hence the need for clarity.
We have been seeking this clarity for months and time is now extremely short.
We must advise our client of the potential legal implications of giving evidence. Allowing our client to proceed without clear direction from you as convener is to place him in legal jeopardy. We cannot responsibly do that. We have told you on many occasions about correspondence from the crown office about the consequences of breaching s. 162 of the Criminal Justice and Licensing (Scotland) Act 2010, which creates a criminal offence. Despite raising those concerns we have had no meaningful response which allows us to give our client any assurance that he can fulfil his oath.
Our client remains willing to give evidence to the committee at any point up to the final date for evidence (currently fixed for 16th February). However, he cannot take his oath to tell the whole truth and nothing but the truth unless and until you properly address in writing the legitimate concerns set out in this and our numerous previous letters.
Levy & McRae