Labour seek review of Scottish Ministerial Code – but why now?

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.

 The other helpful retrospective changes made to the code

 The December 2011 rewriting of the code contained other amendments helpful to the government in relation to the Stihler complaint and the Information Commissioner’s investigation.
The Sunday Herald revealed that where the 2008 version stated that it would ‘normally be appropriate’ to seek the advice of the Government law officers in four areas – the first being when ‘the legal consequences of action by the Government might have important repercussions in the foreign, European Union or domestic fields’.
The 2011 version weakened this to four ‘examples of the kind of situation’ where advice from Law Officers should be sought. The first of these example was then truncated to circumstances where: ‘the legal consequences of action by the Government might have important repercussions’. The reference to ‘foreign, European Union or domestic fields’ was deleted.
This is another neat retrospective addition for potential defence – with an ongoing investigation into conduct under the 2008 code quite improperly neutered by the changes made.
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14 Responses to Labour seek review of Scottish Ministerial Code – but why now?

  1. Oh well, I suppose I must be one of the self-mutilatorily blinkered but I for one think you are contriving to argue about the numbers of angels dancing on a pin.

    Firstly, I – and I expect the majority of people who even care about this – do not believe that the FM deliberately tried to mislead over college funding. The true figures had already been published by the Government so why try to subsequently deliberately lie about them? And if they did lie, why apologise just a couple of hours later? Hardly the actions of a Machiavellian mastermind.

    It was a cock up and an embarrassing one for the FM and the Scottish Government but attempts to inflate this into the FM testing the Parliamentary structures to failure is just laughable.

    With regard to the change of the wording of the Ministerial Code, you have to be determined to find fault to criticise what was a minor and clarifying change in the wording. If you are forbidden to reveal if you are in the possession of legal advice then it should be obvious (except to the most obstinate and biased) that if you reveal that you do not possess legal advice this is exactly the same as revealing that you do. Kafka would have loved a world where you were forbidden to reveal if you have advice but are free to say you don’t have it. So asking a minister if they don’t have advice forces a minister to confirms if they do have it.

    Labour (and by extension yourself) seem to be moaning about the fact that the SNP control Parliament. This is because the SNP won a majority at the last election as a result of an arcane process called “democracy”. Strangely enough, having won a majority, the SNP are reluctant to indulge the Labour party’s insistence in having 24/7/365 inquiries into the FM’s actions.

    There are a lot of much more important topics we should be debating but the Labour Party’s failure to tackle the SG on the real issues points to a worrying vacuum in their parliamentary competence.

    In their determination to “prove” that the FM is untrustworthy the Labour Party are abrogating their responsibility to act as a responsible opposition and focus on the issues that really matter. Had the FM been guilty of any genuine abuses of power, of corruption or indeed incompetence I would be the first to complain. As it is, I, like the majority of Scots, consider that the SG is doing a good job under difficult circumstances and this is reflected in the SNP having the highest approval ratings of all the parties and the FM enjoying wide spread approval.

    For a much more perceptive view of this stooshie in an Edinburgh tea cup, see MacWhirter’s article in the Herald on Sunday:
    http://www.heraldscotland.com/comment/columnists/theres-no-conspiracy-its-just-a-cock-up-by-a-knackered-fm.19442739

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    • I have to agree Doc. down to, and including the link to Iain MacWhirter’s article. He’s a very clear-minded columnist who isn’t afraid to lay blame at the feet of whoever’s responsible.

      A lot of the heat generated is down to Johan Lamont’s ill-tempered rants which I feel do the Parliament a great dis-service. If anything needs re-written it’s the Code of Conduct for Member’s not Minister’s!

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  2. The trouble is, Dr DM, the story is meat and drink to the many people – some on this blog – who like nothing more than a good party political dogfight, where the original cause gets rapidly lost in the heat of the scuffle and it’s open season to bite anyone in sight. Human nature, maybe? – a micro-scale example of the sort of row that triggered the First World War.

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  3. Bloody hell – I now find myself agreeing (in part at least) with “Doc”. Do I think that The fat Controller tried to mislead Parliamewnt? No.

    This was a cock-up pure and simple.

    But, let’s face it he is such an smiley smug arrogant fella that you can’t help feeling he had this coming to him (btw – I’m talking about Salmond here – not “Doc”).

    But what this episode and the denouement from Nicola (re the non-existing legal advice) does do is to undermine Salmond and the snp governemnt’s claim to competence.

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  4. Can I add another observation: Newsroom is guilty of misrepresenting the position of the FM in relation to his statements to Parliament. She writes:
    “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.”

    Given that Newsroom is complaining about Mr Salmond misleading Parliament she might be a bit more careful about misleading her readers. Mr Salmond did indeed come to parliament to make a statement but he offered no apology and indeed was not accused of misleading Parliament. If you have a look at this link:
    http://scotslawthoughts.wordpress.com/2012/10/29/mr-salmond-and-the-schrodingers-legal-advice-on-the-eu-an-issue-which-will-not-go-away/
    Paul McConnville, after a long, forensic analysis of what was said EXACTLY by the FM concluded:
    “Has Mr Salmond misled the Parliament (as it is not yet an offence punishable by Parliamentary censure to allegedly mislead Andrew Neil)? It is true to say that Mr Salmond’s words are always carefully weighed. They are also very precise in normal circumstances. Whilst Mr Salmond clearly suggested to Andrew Neil that there was such specific advice, he appears never to have given such a hostage to fortune in Parliament. He either fudged the reply, or delivered no response at all.”

    Mr McConnville is no friend of the SNP (a Labour man) but even he concludes that the FM did not mislead parliament. He did inadvertently mislead Parliament last week and immediately apologised.

    I agree with “Simon” (WTF! as younger readers would text): his hubris at FMQ probably drew the wrath of the gods and the FM may be a bit more rueful and humble at the next outing.

    There have been a couple of gaffes recently (and MacWhirter offers a credible explanation in the moving of spin doctor extrodinaire Kevin Pringle to deal with the Yes campaign). They need to tighten up presentation and ensure that facts are as accurate as possible: not just to save them from red faces but to ensure that everyone feels that information coming from the SG is credible and trustworthy. With us facing the most important decision in 300 years we need and deserve our Government to be scrupulously honest and accurate with all the information it releases.

    It would be nice if the Unionists would also adhere to that principle.

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  5. Dr DM states that the Labour Party should “focus on the things that really matter”. I do not think that there is anything more important in our democracy than ensuring that those in Government give straight and truthful answers / information to their parliament and others.

    It is clear that the “smiley smug arrogant one” and his colleagues cannot be trusted to be truthful and we certainly cannot believe anything that they tell us.

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    • Tire twister (an accurate name): if we engineer a situation where no-one can believe anything that anyone else says then that way lies madness.

      Unfortunately, this is the path that Labour and the other Unionist parties are leading us down with their constant attacks on the FM. This isn’t some noble cause to uphold truth and justice: it is a pretty sordid attempt to discredit the FM and thus derail the independence vote. This isn’t principles, it’s politics.

      Maybe Mr Salmond smiles more than he should do (certainly a contrast to the Labour leader who would never be mistaken for a ray of sunshine). Maybe he is smug: being at the pinnacle of your profession has a habit of doing that to you, ditto for arrogance (though Mr Salmond is quite self deprecating at times). However, dishonest? I think not. He well knows that to win the referendum vote there must be complete trust from the electorate. That trust has to be earned and the SNP has been working hard and successfully as a government to earn that. Trust also requires confidence in the essential truthfulness of leaders. Labour know this, hence the constant attempts to undermine that trust.

      The games of the Unionists reminds me of the Pharisees trying to catch Jesus out with their questions. Their faux outrage grows every time Mr Salmond finds away of not answering the “have you stopped beating your wife” type questions. When he stumbles (as he did last week), then they cry their inflated triumph in shrill, unedifying tones that is such a turn off for the ordinary voter.

      Mr Salmond had a bad week and it hasn’t been a great month but who thinks that Ms Lamont came out better after that tirade? That baleful glance at the deputy presiding officer – just who is that is respectful of Parliament and who isn’t? In decisions critical to our country’s future who would your really trust the most, who would you believe most likely to work in the best interests of Scotland and the Scots? Joanne Lamont? Ruth Davidson, Willie Rennie (who)? or Alex Salmond? Scots have been asking themselves that question for some time now and the answer is writ in the SNP majority and consistent satisfaction ratings for both the SNP Government and Mr Salmond.

      Scotland is fortunate to have a man of Mr Salmond’s stature in the driving seat at this pivotal time. He is a long way from perfect but even further from bad. But at the close of day, he is just a man. When we are called on to decide our nation’s destiny in just under two years time, the merits or otherwise of Mr Salmond are irrelevancies. We need to focus on the question. History can write the judgement on Mr Salmond but it is up to us to write the future for Scotland.

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      • You seem to believe that Alex Salmond will forever be leader of the SNP and even that the SNP will forever be in government. That obviously will not be the case. At some point they will lose the election and any one of the other governments will then be leading the country towards its future – and probbly in a different way to that of the SNP. This is not about Alex Salmond or the SNP, it’s about whether or not Scotland would fare better going it alone or united with the rest of the UK.

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        • You are right Lowry, this is not about Alex Salmond. This is the point that Dr McK and others have been trying to make. But the Opposition Parties at Holyrood and the Press have been trying very hard to make it so. The Unionists have changed their negative tactics from politics and are now using that same negativity to attack the First Minister personally. The events of the last week are a perfect example of this. They can see that he is politically a lot sharper than any other party leader in Scotland by a long way, so they have resorted to trying to knocking him off his perch. They reckon that once they achieve this then the Scottish public will start to take them a bit more seriously. In their dreams!

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        • Even if Scotland didn’t ‘fare better’ and we stayed much the same come independence as finally the unionists now claim after decades of blatant misleading claiming ‘too poor’ can’t afford to be independent’, the one overriding gain in achieving independence would be respect, finally the opportunity to hold our heads high as masters of our own vessel.
          This to me is worth far more than additional wealth.
          Important decisions such as EU, currency, defence, taxation and so on are all decisions every other independent nation confronted and had the ability to decide, would Scotland be some sort of bizzare exception?

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    • Twister by name, twister by actions……

      Funny how you forget to mention the ongoing lies of the LIEboor party, especially when they are so numerous. So numerous in fact that they outweigh anything resembling the truth from that motley crew of failed toon coonsilurs.

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  6. Ah Dr MacKenzie, without going into the rights or wrongs (I usually find that any critisim you levy at those supporting the Union applies equally to the Nationalists – do you ‘test’ your accusations before making them?!), I think the activities of the last few weeks prove why I have such a low opinion of politicans and politics in general.

    The Government – acting and behaving more of less like any other party would in power except they do know how to say sorry.
    The opposition (and I’m not talking Indy) – so bitter and completely incapable of any credible opposition or holding the government to account in a professional manner.

    You said before ‘get involved’. Notwithstanding that I am in a small way (not politically per se), but right now, I have no interest in devoting my life to shaking up politics and making it accountable to the people it is meant to serve, but frankly does not.

    A new breed of practical politics is needed away from these geriatric left and right wing ideologies.

    If Indy brought that, you’d find me very interested. But as it stands, this is not about changing the fundamentals of politics, it’s about changing who makes decisions and who has the power. And whether you agree or not, I do not believe the people of Scotland will have an iota more say in the running of their country than they do today.

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  7. “If Indy brought that, you’d find me very interested. But as it stands, this is not about changing the fundamentals of politics, it’s about changing who makes decisions and who has the power. And whether you agree or not, I do not believe the people of Scotland will have an iota more say in the running of their country than they do today”

    That says maybe Jamie but when you talk about ‘a say in the running of their country’ would an independent Scotland be burdened with a Tory government . I think unlike the situation we tolerate today, Scotland would have a huge say in that.

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  8. Unfortunately, For Argyll seems to have missed the letter which was printed in the Sunday Herald on 11 November, a week after the article to which For Argyll refers. Although the letter was written by Fiona Wilson, Scottish Government Head of News and therefore might normally merit a degree of scepticism , I have not seen the facts challenged since then, and they may explain why the Labour Party reduce the pace on that particular issue. The letter printed in the Sunday Herald said:

    “I write to correct claims in your article (How ministers rewrote the rules to hide lack of EU legal advice, News, November 4). The Ministerial Code was not rewritten in an attempt to avoid questions raised by Catherine Stihler MEP in relation to an independent Scotland’s place in the European Union, as opposition parties had claimed. You report that “the code was rewritten in December [2011]“. This is incorrect. Changes to the code were initiated by officials in April 2011, prior to the Scottish Parliament election. Ms Stihler’s Freedom of Information request was not submitted until May 2011, by which time the draft text under section 2.35, that the Sunday Herald highlights, relating to “the fact that legal advice has or has not been given”, had already been amended by officials. The Scottish Information Commissioner considers appeals based on the Freedom of Information (Scotland) Act. The Ministerial Code is for the guidance of ministers in their conduct. These changes had no impact at all in the commissioner’s consideration of the Stihler appeal.

    There are certainly worthwhile stories and comment on the accuracy of recent ministerial statements and the way that opposition parties are going about their business currently. But, the particular story about changes to the ministerial code may well not be worth pursuing any further.

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