JOHN Swinney has insisted the civil service's code of conduct prevents the First Minister's chief of staff from giving her own written and oral evidence to the Alex Salmond inquiry.
Ahead of the opening session tomorrow, MSPs have told the Government they want to be able to hear in writing and in person from Nicola Sturgeon's most senior aide Liz Lloyd.
But in a letter to the cross party committee the Deputy First Minister argued it would be in breach of the civil service code of conduct for officials to give "personal reflections or private opinions" on areas of government responsibility.
The Government want Lloyd's evidence to be included solely in a written timeline recording how events unfolded.
"I would like to underline the status of the civil service in giving evidence to the committee, whether in writing or orally. As set out in statute, the role of the civil service – including special advisers – is to serve, and be accountable to, the elected government of the day. It is ministers who are in turn accountable to parliament for the actions of government," Swinney told committee convener Linda Fabiani in a letter published today.
"With the express approval of ministers, civil servants can, and do, have a role in supporting ministers to discharge that accountability to parliament. However, it is not possible under the civil service code for personal reflections or private opinions to be offered on matters which are properly the responsibility of the Government.
"To do so would be entirely contrary to the constitutional and contractual status of the Civil Service."
READ MORE: Alex Salmond inquiry: MSPs demand FM's chief of staff gives evidence
He added: "I must emphasise that officials’ attendance is on behalf of and with the consent of ministers, and not on an individual or personal basis. Neither Scottish Ministers nor the Permanent Secretary of the Scottish Government have the power to set aside or suspend the application of the Civil Service Code in Scotland."
In his Swinney also underlined the Scottish Government's refusal to make available various legal documents to the committee.
Permanent Secretary Leslie Evans, who appears before the inquiry in Holyrood tomorrow, has previous cited legal privilege for not handed over the papers.
The committee is looking at how the Government botched an in-house probe into sexual misconduct claims made against Salmond in 2018.
The former First Minister had the exercise set aside in a judicial review at the Court of Session, forcing ministers to admit it had been unfair, unlawful and “tainted by apparent bias”.
The collapse of the Government’s case in January 2019 left taxpayers with a £500,000 legal bill for Salmond’s costs, and the Holyrood inquiry is investigating what happened. The judicial review is a key part of the inquiry’s work.
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The MSPs are also looking at whether the First Minister broke the Scottish ministerial code by staying in contact with Salmond while her officials were investigating him.
The committee last week urged the Government to waive its privilege and cooperate.
However, the newly released letters show the Government has dug in.
Swinney told the inquiry that if the Government were to waive legal privilege in this case it would undermine the ability of ministers to receive “full and frank” legal advice in future.
His letter to Fabiani stated: “This would not be in the interests of good government and the upholding of the rule of law. Successive administrations of different political complexions have reached the same conclusion in respect of other subject matter.”
He said this need not impede the inquiry as the Government could still explain its legal position at specific points in time.
However this denies the committee the important text of the Government’s arguments before the court.
Swinney said a court undertaking prevented ministers releasing the probe into Salmond which was set aside by the Court, or any witness statements, working notes and drafts of the report used by the investigating official.
Swinney also said court papers used in the judicial review were now the property of the court.
Last week the committee warned they would “not hesitate to explore all options available”, a reference to the Scottish Parliament’s powers to compel the disclosure of documents.
The inquiry said it felt “frustration and disappointment” at the Government sitting on swathes of evidence related to the judicial review it lost to Salmond.
Writing to Evans last week Fabiani suggested including Lloyds actions in a general submission would not be sufficient.
"As I said in my letter of 31 July, the suggested timeline is welcome, particularly because the Government submissions received so far have reflected the Government’s actions at a very high general level," Fabiani told Evans in the letter published by the Scottish Parliament today.
"Should the Committee require further evidence from individual officials, it will seek it directly. I also made it clear that the Committee was not content for the actions of the First Minister’s Chief of Staff to be added to the timeline of actions by Government officials.
"I have discussed these matters further with the Committee. While the Committee agrees that a timeline is a helpful reference, it wants to confirm at this point that further evidence from individual officials providing a factual account of their involvement in the development of the policy and in the judicial review, as originally requested, will also be required.
"This includes from the Chief of Staff."
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