Chamber and committees

The Committee on the Scottish Government Handling of Harassment Complaints wrote to the Corporate Body on the evening of 17 February 2021 seeking an urgent decision by the SPCB, as the publisher of parliamentary material, on whether the submission on the Ministerial Code phase of its inquiry made to it by the former First Minister Alex Salmond could be published.  The Committee had decided earlier that day by a majority that it could not publish the submission due to legal restrictions imposed by the Lord Justice Clerk at the High Court of Justiciary under the Contempt of Court Act 1981 in the case of HMA v Alexander Elliot Anderson Salmond dated 10 March 2020 (as varied on 11 February 2021).  As the Committee’s decision not to publish was not unanimous, it agreed – also by majority – to refer the matter to the SPCB for consideration.

The SPCB discussed the matter at its meeting on the morning of Thursday 18 February and reconvened that afternoon to give it further consideration.  Having considered advice received from officials the SPCB reached a collective decision on the matter, Andy Wightman MSP having recused himself from the afternoon meeting and the decision given his membership of the Committee. In doing so, the SPCB was fully aware of its legal obligations to abide by the terms of the court order and, after careful consideration of all factors, the SPCB decided on balance that it was possible for the submission to be published. It then referred the matter back to the Committee for publication in line with its written statement on handling of information and evidence.

The Crown Office and Procurator Fiscal Service, noting press coverage of the SPCB’s decision, wrote to the SPCB on 22 February reminding the SPCB of the terms of the court order recognising that decisions on publication are a matter for it.  On the publication of the submission by the Committee on the evening of Monday 22 February, the COPFS again wrote to the SPCB. In response, the Presiding Officer called an urgent meeting of the SPCB for the following morning to consider the terms of that letter. Clarification on that letter was sought from COPFS and received and was available for the SPCB’s consideration at its meeting on Tuesday 23 February. 

The SPCB is unable to publish that letter or its contents as the Crown Office requested it be treated as confidential. The SPCB respects that request given the sensitivity of the contents and the terms of the order. After due consideration of its contents and mindful of the balance of judgements it had undertaken in relation to its earlier decision, the SPCB  decided that, while the submission could still be published, some of the content of the former First Minister’s submission required to be redacted.  Andy Wightman again recused himself from this decision. The submission was immediately removed from the Committee’s webpages and a redacted version was posted in its place. 

The SPCB takes it duty to support parliamentary scrutiny and to promote public transparency very seriously indeed but is acutely conscious of the need to act lawfully in all circumstances. These obligations do not always necessarily sit comfortably together. The SPCB, which is a six-member committee with representation from nearly all the parties in the Parliament, recognises that this is a matter of some complexity and also of great concern to fellow Members and others. It has sought to undertake its responsibilities with care and diligence throughout its handling of this very challenging issue, at the heart of which is the protection of the identity of the complainants.

Each decision of the SPCB in relation to this matter has been taken collectively and with great care.