First minister cleared of breaching ministerial code but criticised for ‘muddled’ response in BBC interview
Alex Salmond has been chastised for giving “muddled and incomplete” answers about his legal advice on the European Union, but cleared of breaching the ministerial code.
A report by Sir David Bell, a retired Whitehall mandarin, concluded that the first minister did not deliberately try to mislead voters or opposition parties about his government’s legal advice on an independent Scotland’s future membership of the EU.
But Bell said Salmond had been partly to blame for the furore last autumn by failing to give clear and precise answers in a BBC interview broadcast early in 2012.
Bell said it “stretched credulity” to claim in court that the Scottish government had no information about its legal position on the EU.
In October Salmond’s deputy, Nicola Sturgeon, admitted the government had not received formal advice from its law officers on whether an independent Scotland would automatically get EU membership and inherit the UK’s existing opt-outs.
Until then the government had been fighting a vigorous legal battle against the Scottish information commissioner to prevent its EU legal advice being disclosed in response to a freedom of information request by the Labour MEP Caroline Stihler.
In the BBC interview Salmond had appeared to claim that such legal advice did exist. The interviewer, Andrew Neil, asked: “Have you sought advice from your own Scottish law officers in this matter?” Salmond responded: “Well, yes, in terms of the [muffled words], and obviously … [Neil interrupts].”
The apparent discrepancy prompted opposition allegations that Salmond had lied, charges the first minister rejected.
In his report, Bell told Salmond: “Responding as you did, you got off on the wrong foot, so that your attempt afterwards to describe the underpinning process was somewhat muddled and incomplete and later became confused with references to conventions protecting other forms of legal advice.
“In these circumstances, one can understand the reaction of Ms Stihler and others when they subsequently compared your comments with the deputy first minister’s statement on 23 October.”
Bell said Salmond had not directly answered his question about why he answered Neil’s question in that way. Salmond had admitted, however, that his response could have been clearer.
Rejecting a formal complaint from Stihler that Salmond had breached the ministerial code, Bell said he accepted that the first minister had been trying to observe the rules that prevented him from disclosing law officers’ advice. He said he was reassured that the lord advocate, Frank Mulholland, had accepted Salmond’s explanations.
Bell, a former permanent secretary at the Department of Education who served as an external adviser to the Leveson inquiry into press ethics, said one substantial problem for Salmond was the poor wording of the ministerial code, which should be redrafted to make it clearer and more accessible.
The current code failed to clarify the different types of legal advice available to ministers – whether from law officers such as the lord advocate or from the Scottish government’s own in-house lawyers – and failed to make clear what kind of protection against disclosure exists for different types of advice.
Salmond said Bell’s report confirmed that his government had acted properly under the ministerial code, but he accepted that it needed to be redrafted. “I am delighted that each complaint has been dismissed and the advisers concluded my ministers and I have acted entirely properly at all times,” he said.
Stihler said the report confirmed suspicions that Salmond had been deliberately misleading in his interview with Neil. “Reading this report it is difficult not conclude what we have said all along. Alex Salmond said he had legal advice on Scotland’s relationship with the EU when he hadn’t even sought it,” she said.
Paul Martin, Scottish Labour’s business manager at Holyrood, said: “The first minister got to pick the judge in this case and he got to pick the charges. And yet even in those circumstances Salmond is found to have evaded questions and used muddle and confusion. Yet bare-faced Salmond has the brass neck to crow that this report completely clears him.”