Wednesday, 24 October 2012

Too much detail?


Tom Gordon

In the wake of the SNP EU row, it's worth going back to the original texts and transcripts.

As every anorak now knows, Alex Salmond was interviewed in March by Andrew Neil about Scotland and EU membership.

Neil asked: Have you sought advice from your own Scottish law officers in this matter?

To which Salmond replied: We have, yes, in terms of the debate...

Bear in mind that law officers in this context has a very specific and limited meaning - it refers only to the Lord Advocate and his deputy, the Solicitor General.

After Nicola Sturgeon revealed there was no legal advice and the law officers hadn't been asked, Mr Salmond came to the chamber to explain what he'd meant in the Neil interview.

He said he had been referring to documents in more general terms, but stressed they were "underpinned" by legal advice from the law officers.

This is from the official report:

"As the full transcript of that interview makes very clear, I was talking about the issue of Scotland’s continued European Union membership in terms of general debate and in terms of many eminent legal opinions that were offered.

I was also—as the interview makes clear—speaking in terms of the various Scottish Government documents that contain reference to an independent Scotland’s membership of the European Union. Those publications are, “Choosing Scotland’s Future”, which was published in August 2007, at page 24; “Your Scotland, Your Voice”, which was published in November 2009, at page 107; and “Your Scotland, Your Referendum”, which was published in January this year, at page 4. All those documents are underpinned by legal advice from our law officers: they have to be. That is the reality." [my emphasis]

But as the 2011 Ministerial Code makes clear, it is actually rather unusual for the law officers to get involved in the fine print of government publications. Usually, it's the Scottish Government's Legal Directorate.
Moreover, the responsibility of the law officers is to advise on the law of Scotland, not EU law.

Here's what the code says:

Maybe the passages Salmond refers to were particularly important?

Here they are:

Choosing Scotland's Future
 Your Scotland, Your Voice

Your Scotland, Your Referendum

Do the law officers, who also have the Crown Office and Procurator Fiscal Service to oversee in their spare time, really get dragged into proofreading such documents?

They must be very diligent.

If not, Mr Salmond's gloss on events doesn't quite add up.

1 comment:

  1. Did anybody claim law officers were proof-reading these documents? My wee straw-man alert has been triggered.

    I have no way of knowing exactly what Alex Salmond had in mind when he used the phrase, "underpinned by legal advice from our law officers". Frankly, it's vague enough as to be all but meaningless. What is absolutely clear, however, is that this must have been very informal and arms-length, for the very reasons you set out.

    I could suggest, for example, that merely by confirming that Scotland currently complies with all relevant EU law, the law officers could be said to be "underpinning" a small but significant part of the Scottish government's position.

    It's good to set aside prejudice when thinking about these things. Amazing what you can see without the fog.