Scottish Parliament

Can a new broom sweep clean in legislative legal advice?

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FOLLOWING THE RESIGNATION of Lord Advocate James Wolffe QC and the promise of fresh leadership under new Lord Advocate Dorothy Bain QC, we have a unique opportunity to examine the legal failures of recent years regarding both the Scottish Government and those responsible for offering it legal advice.

Following Freedom of Information requests by The Scotsman, it turns out that the Scottish Government has spent nearly £6m defending high profile legal cases in the years prior to the May 2021 elections. Its report of the answers found that “An analysis of the listed cases shows that around two thirds would be considered victories for the Scottish Government or decisions in favour of the Lord Advocate.” But that means a third of the time the Scottish Government was defeated. By extension, questions as to the quality and nature of the legal advice, views and judgement-calls of the Law Officers (Lord Advocate and Solicitor General) and the Scottish Government Legal Directorate (SGLD) are automatically raised.

Let me start from first principles. How does a Bill become a law? Well, before any bill can be introduced in the parliament by the Scottish Government the minister responsible for presenting it must clearly state it is his or her view the legislation is within the legal competency of Holyrood. The relevant part of that process is the minister’s – rarely being specialists themselves – only reach a view following advice from the Law Officers if their proposed bills are within the legal constitutional limits of Holyrood’s powers.

But when the Scottish Government brought forward two Bills – one on children’s rights and the other regarding localism – it found itself failing that process.

The Scottish Government brought forward two bills; one seeking to incorporate into Scots Law the UN Convention on Rights of Children and the other concerning the European Council’s Charter on Local Self-Government (nothing to do with the EU). It is interesting that in relation these two The Scottish Government Bills, the Supreme Court on October 6th, 2021, ruled that “you [The Scottish Government] draft the legislation as if the constraints in the Scotland Act didn’t exist, and you leave it to the courts to sort out the problems on a case-by-case basis”

How can it be that the Supreme Court is declaring that Holyrood Bills are being written with a view to ignoring the constitutional competencies of Holyrood? Are the Law Officers not supposed to be advising ministers if their proposed bills are within the ‘legal competency of the Scottish parliament’?

Are there grounds for us to question the precision, accuracy and correctness of the legal advice being offered up by the Law Officers and the SGLD to The Scottish Government in recent years?

Yes, there are grounds, and we have the receipts for the court cases that demonstrate this is so. If we cast our minds back to the Named Person Scheme (2016) we begin to find the first grounds for concern.

The Named Person Scheme was the attempt by the Scottish Government to give every child in Scotland a state-allocated guardian. This ‘named person’ would be an employee of the state, charged with overseeing the “wellbeing” of every child in Scotland. The Christian Institute spearheaded a successful legal challenge to the legislation, a challenge it resisted through the Outer House of the Court of Session and Inner House of the Court of Session, up to the Supreme Court itself (were the Scottish Government lost). It left taxpayers with a bill of £482,266.27 for costs.

The Supreme Court ruled in 2016 that the Named Person’s legislation violated article 8 of the European Court of Human Rights (ECHR). The ruling stated, “In summary, we conclude that the information-sharing provisions of … the Act … are incompatible with the rights of children, young persons and parents under article 8 of the echr”.

This is incredible, not least since in Feb 12th 2014 the then Lord Advocate (the Scottish Government’s legal advisor) Frank Mulholland QC was warned by the Christian Institute in a letter that “the Christian Institute has received advice from leading counsel which casts considerable doubt over whether Part 4 of the Bill is compatible with Article 8 of the European Court of Human Rights

On March 21st, 2014, Frank Mulholland QC swept those concerns aside. In his judgement he had “taken the points raised” but did not consider them “appropriate for reference”. Nevertheless, the Supreme Court in July 2016 would go on to recognise the exact points raised by the Christian Institute’s 2014 letter.

But that is far from being the only instance where the then Lord Advocate Frank Mulholland QC was linked to a questionable legal judgement-call. Let us recall the decision to prosecute those involved in the bankruptcy administration of Rangers in 2015. The former Lord Advocate triggered the prosecution of ex-Rangers chairman Mr Charles Green. Remarkably, that prosecution has since been ruled in court as “malicious” – a rare and difficult judgement to obtain – and Mr Green was handed £6.4m from the taxpayers in compensation.

But the Rangers administration fiasco doesn’t stop there. Two other men linked to the Rangers being in administration, David Whitehouse and Paul Clarke, have also been handed millions out of the taxpayer’s purse due to “malicious and wrongful” prosecution by the Crown Office from the time Mulholland was top dog. Whitehouse and Clarke have been given £10.5m each.

Mulholland’s successor as Lord Advocate James Wolffe QC admitted subsequently that he supported calls for an independent judicial inquiry into the fiasco, which will need to wait. Why? Because there are yet more claims against the Crown Office.

Taxpayers could be looking down the barrel of upwards of £100m in pay-outs. That’s some legal expertise for the Scottish Government to have relied upon.

Now you might be thinking ‘at least he isn’t Lord Advocate anymore’, and you would be correct. Today he is now Lord Mulholland, High Court Judge, Senator of the College of Justice. He landed that job in December 2016.

But it isn’t just Mulholland’s past judgement we should be questioning. There’s the politics of it all too – such as the not insignificant matter of the Scottish Government’s intransigent refusal to take legal advice on the Alex Salmond judicial review over staff harassment. In the end taxpayers had to fork out £512,250 by Jan 8th, 2020.

If such poor judgement calls coupled with refusals to take legal advice is in any way representative of the cultural innerworkings of the Scottish Government, the Law Officers and SGLD, is it surprising the government also lost yet another costly judicial review since then?

Canon Tom White, parish priest of St Alphonsus in Glasgow (among other petitioners) on March 24th 2021 challenged the Scottish Government’s closure of places of worship during lockdown. The judge in this instance was Lord Braid, who ruled – that The Scottish Government didn’t understand the significance of article 9 in the ECHR.

James Wolffe QC, Frank Mulholland’s replacement has since followed his predecessor Lord Mulholland out the door, resigning as Lord Advocate, to be replaced by Dorothy Bain QC.

I wish I could conclude by writing that a new broom sweeps clean, but we will need to wait and see.

What can be said is that it is high time for greater scrutiny of decision making of those responsible for giving and taking legal advice for the Scottish Government. Then there’s the legal advice on the same issue of competency of proposed legislation given to the Presiding Officer of the Parliament, who also has to attest to its competency. It must be worrying that at every point where the Scottish Government got it wrong the Scottish Parliament’s chief officer made the same mistake when he or she is meant to provide a check against government error or enthusiasm.

One thing is certain, the failures of recent years have cost the taxpayer millions and damaged the standing of the parliament.

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