Judicial review advice published by Ministers

Key legal advice received about the judicial review brought by Alex Salmond has been published by the Scottish Government today.

The decision to release the advice was made to disprove allegations made about the Scottish Government’s handling of the judicial review - including allegations that counsel’s advice was ignored and the process deliberately delayed.

Deputy First Minister John Swinney said:

“Today the Scottish Government has taken the exceptional step of releasing key legal advice. We have done this in recognition of the overwhelming public interest in rebutting the false allegations made about the advice informing decision-making in the judicial review.

“These documents are clear. Our legal advice was optimistic about the government’s prospects for success at the start. It became gradually but progressively less optimistic over time.

“It was only in December that the advice concluded that our case was no longer stateable and we should concede. Indeed, as late as 11 December, Ministers were advised that we should continue.

“Within a matter of days of being advised that the case was no stateable, we have taken the decision to concede. That was right and proper.

“Significantly, however, this comprehensively disproves claims that we had continued the case in defiance of legal advice. That is categorically untrue and these documents put that beyond doubt.”

“All of this material is now in the public domain and, with the agreement of the Law Officers, the Scottish Government has waived legal privilege over them. We have also responded to a further request from the Committee’s today and agreed we will consider whether there are any further documents that should be released, subject to essential statutory checks and notifications. We will do this as a matter of urgency.”

Background

The documents the Scottish Government is making available to the SGHCC Committee cover the key advice from external Counsel that informed decisions at critical points in the progress of the judicial review, in particular around the prospects of success.