The Labour group at Holyrood are asking for a review towards establishing a new code of conduct for Scottish Ministers, one which would be independently adjudicated.
They are doing so because, for the second time in three weeks, the First Minister had to return to the Chamber in Holyrood to make a formal apology for having misled parliament.
The first was the defence of the astonishing revelation that the Scottish Government had never even asked for legal advice on the position of an independent Scotland with EU membership – although the First Minister had firmly told Andrew Neil on national television that his party actually had such advice.
The second was last week when, after First Minister’s Questions, Mr Salmond had to come back to the chamber to apologise for giving misleading figures to justify his erroneous claim that the government’s funding to the Scottish colleges was not a decrease for this year.
The Labour group are arguing, through its Business Manager, Paul Martin MSP, that Alex Salmond has tested parliamentary structures to failure in his abuses of power.
Mr Martin says: ‘Whenever something contentious happens, he uses his majority to close down committee inquiries. When the first minister is caught out, he refers himself under a code he writes and re-writes, decides the terms of the charge and appoints his own judges.’
Rewriting the ministerial code during an ongoing investigation
The above is a factually correct description of the First Minister’s behaviours – but it adds to the begging of the question why Labour have left it until 18th November to call for a review of the code?
On 4th November, The Herald revealed that Scottish Ministers had rewritten relevant elements of the Ministerial Code during the time when they knew the Information Commissioner was investigating a complaint by Labour MEP, Catherine Stihler, that they had refused to say, under FoI, whether or not they had been given legal advice on the subject of a Scotland membership of the EU.
Ms Stihler had appealed to the Scotland’s Information Commissioner, Rosemary Agnew, in October 2011
At the end of an investigation which lasted nine months, Ms Agnew ordered the Scottish Government to confirm if it had received such advice. The government refused to do so and launched a case – now known to be an expensive gamble with a losing hand – at the Court of Session to keep the matter secret.
The government argued that the Scottish Ministerial Code made it impossible for them to confirm or deny the existence of legal advice.
The First Minister referred to Section 2.35 of the code: ‘The fact that legal advice has or has not been given [Ed: our emphases] to the Scottish Government by the Law Officers … must not be revealed outwith the Scottish Government without the Law Officers’ prior consent.’
He used this to justify his insistence that he was prevented by the code from making any response to Stihler at all, including being unable to say if he had not received advice.
The Herald revealed that, with Agnew investigating Stihler’s FoI complaint from October 2011, the Scottish Government rewrote specific sections of the Ministerial Code in December 2011, to act as a defence if the Commissioner were to rule against them in her adjudication.
Both of these hypotheses came about.
The Commissioner ruled against the government and the government played the Code card.
It just wasn’t the same code that had ruled their conduct when they refused Stihler’s FoI request in the first place. They had changed it retrospectively to support that refusal.
The wording of the 2008 version of the Code – in play at the time of the refusal to respond to Stihler and still in play during the first phase of the Information Commissioner’s investigation, is that ministers may not reveal if ‘legal advice has been given’.
When The Herald blew the whistle on the retrospective altering of the Code, a spokesman for the Scottish Government said: ‘There is no difference in meaning between the formulation “has been given” and ‘has or has not been given”. ‘
But there is a difference – and if there was not, why change it?
The first version forbids a positive – that the fact that advice has been given must not be confirmed with permission of the Law Officers.
The revised version forbids both a positive and, expressly, a negative – that the fact that advice has or has not been given cannot be revealed without the permission of the Law Officers.
This was the escape clause the government wanted, which they manufactured for themselves and which they later deployed to defend against the Commissioner’s ruling and to disguise the fact that they had not even sought such advice.
Of course such conduct is utterly improper, utterly unacceptable in a democracy and simply not available to anyone who sees probity as a non-negotiable governing principle.
Of course this conduct raises questions about who should write and who should police the Ministerial Code.
But The Herald revealed this on 4th November. This was the time for the Labour group to go in hard on insistence on change in this matter.
Of course it is indefensible – unthinkable – that those governed by any code of practice should write that code themselves – amend it when it suits them, even in the middle of ongoing statutory investigations and also arrange the detail of any investigation of improper conduct under that code.
Why did Labour wait until 18th November, two weeks after The Herald’s revelations?
The giving of misleading figures on education funding is quite wrong and manifestly a serially strategic device in use by the First Minister – but it does not have the political velocity of the brass necked deception over the unsought legal advice on potential EU membership for a hypothetical independent Scotland.
If the Labour group take two weeks to recognise and grab one of the most effective political torpedoes they could have been handed – The Herald’s 4th November revelations of the government’s retrospective rewriting of the Ministerial Code – this sort of response time is no use in government.
This situation demonstrates a compound failure.
One is a failure of fundamental integrity in what only the self-mutilatorily blinkered could defend as unintentional or coincidental manipulation.
One is of the Doh faction’s failure to wake up and smell the cordite.
This evidence of signal bur different failure by the two main political parties in Scotland leaves the country with only one choice in 2014. Bide time for better.