First minister's questions: A question of trust?

The Garden Lobby gossip? Not, all in all, Alex Salmond's most comfortable Holyrood half hour - although not by any means fatally wounding at this stage.

I refer, of course, to the exchanges in the chamber during questions to the first minister anent the issue of Scotland's putative accession to the European Union; legal advice thereon.

To recap, in a BBC interview in March (with Andrew Neil), the FM appeared to suggest he had sought advice from the Scottish government's law officers as to whether an independent Scotland would automatically be a member of the EU or not.

Mr Salmond now says he was referring to generic legal advice, available on a standing basis to ministers with regard to any statements or documents uttered by them or issued in their name.

The two categories, he explained, are these.

One, before any document is distributed, lawyers will scrutinise it and point out any legal problems. As a matter of course, not as instigated by ministers.

You might call that passive advice.

Two, ministers can seek precise guidance as to the legal propriety of a specific course of action. You might call that active advice.

Mr Salmond said today that his reply to Andrew Neil dealt with version one, passive advice. The impression, however, gained ground that he was referring to version two, active advice sought from and tendered by law officers.

Which prompts another question. Passive guidance, version one, could presumably be dealt with by departmental government lawyers.

Whereas Mr Neil asked specifically about advice sought from law officers.

Set that aside for a moment, though.

Accept the explanation that there was a misinterpretation abroad of the first minister's remarks.

Why did the Scottish government not take an early chance to dispel that misleading impression?

Mr Salmond's deputy, Nicola Sturgeon, accepted on Good Morning Scotland that there had been miscomprehension.

However, the Scottish government line is that this situation was caused by others, not by Ministers - who were precise at all times.

It will come as no surprise to you to learn that this explanation was not accepted by Mr Salmond's opponents.

Labour's Johann Lamont explicitly made it an issue of trust in the first minister, rather than a dispute about process.

Indeed, at one point, she deployed cod pity for the man in the top job to reinforce her accusation that he was struggling.

Testing opinion

For the Tories, Ruth Davidson pursued a similar tack - although perhaps she stretched her similes a mite too far, comparing the first minister to, in order, Del Boy, Bill Clinton and Richard Nixon.

And there is another issue. Why did Ministers use taxpayers' money to challenge a freedom of information request relating to legal advice - when they knew that such advice did not exist?

I think there is one possible explanation. Mr Salmond and Ms Sturgeon have repeatedly stressed that, under the ministerial code, they must neither publish legal advice nor disclose whether it exists.

To be clear, ministers from all parties understand why advice is kept confidential. It allows a range of opinions to be tested. It allows advice to be given frankly - precisely because it is private.

This particular case dealt with the existence or otherwise of legal advice.

But, as Nicola Sturgeon acknowledged on GMS, it is possible that it would have set a precedent for the content, as well as the existence, of future legal advice.

Image copyright AP
Image caption Mr Salmond said talks on an independent Scotland as an EU member would take place "from within"

That is because, as the minister noted, there is a dispute between the Scottish government and the information commissioner as to who has the final say on whether a document is excluded from FoI legislation on the grounds that it comprises confidential advice to ministers.

Could it be that lawyers in the Scottish government feared they were about to lose their appeal in this particular case, not least because it had become a cause célèbre?

Could that have prompted concern that they would thereby create a precedent for future cases, perhaps constricting the availability of confidential advice to ministers - in this administration and future ones?

Does that partly explain why Nicola Sturgeon announced the appeal had been abandoned? My guess is that the minister received. . .legal advice on the point, whether passive or active. To reinforce her own legal expertise.

Which leaves us where?

To date, there has been no active search for legal advice on the issue. As of this week, Ms Sturgeon has now sought specific legal advice - and obtained the consent of the Lord Advocate to disclose as much to MSPs.

However, the content of that advice, when tendered, will not be published, following precedent - although it will form the basis of the white paper which ministers will publish in November next year, setting out their vision of independence.

Ask yourself another question.

Is today's controversy, of itself, critical to the issue of independence? To the extent that it deals with trust in the first minister, yes.

Membership terms

Voters must make up their own minds about that. Mr Salmond is adamant that he has behaved with propriety throughout.

But consider the substance. Would the legal advice from Scottish law officers be the final word? No. It would not. It has now been sought.

But even if it is published, even if it positively endorses the assertion that an independent Scotland would automatically be a member of the EU, then others would continue to offer alternative opinions. Including those who are now pressing the FM over his legal advice.

That is because this is ultimately a political issue as much as, if not more than, a legal question. Would Scotland, following a 'Yes' vote in a referendum, be excluded as a consequence from EU treaties?

If not, then would Scotland have to negotiate terms of membership? Both sides say yes.

Mr Salmond say those negotiations would take place from inside the EU: a discussion among communautaire comrades.

His rivals say Scotland would probably have to apply from outside, perhaps thus being obliged to adopt the Euro.

Which is also a question of trust, either way. Whatever sundry lawyers say.