John Swinney under pressure as Greens move to back no confidence motion

The Deputy First Minister survived a vote of no confidence last year over the awarding of exams grades last August after Patrick Harvie's party refused to back it.

However, as the SNP do not have a majority, Swinney would be highly unlikely to survive such a vote with support from the five MSPs from the Scottish Greens.

A statement by the Scottish Greens said today: "The Scottish Greens have previously voted to ensure that the Government's legal advice is made available to the Committee inquiry, and this remains our position.

READ MORE: Lord Advocate set to appear before MSPs at Holyrood inquiry

“The Committee on the Scottish Government Handling of Harassment Complaints has made it clear that it needs access to the Scottish Government’s legal advice on its investigation into Alex Salmond to fulfil their remit, and Parliament has repeatedly backed the Committee.

“The Scottish Government now has just days left to agree the terms of the Committee's access to the information requested. Reaching an agreement on this which is acceptable to the Committee is clearly the only way to avoid a Vote of No Confidence."

It added: “The Conservatives have been shameless opportunists throughout this process, but the Scottish Greens will always defend the integrity of the Scottish Parliament and its ability to hold Government accountable.

"This inquiry should be focused on identifying what went wrong with the investigation into sexual harassment, and on the interests of the women who were failed by the process and others who will need to have confidence in the complaints process in future.”

Appearing in person at the committee last Friday Salmond called for the legal advice which relates to his successful judicial review - which challenged the government's investigation into two complaints made against him - to be released to the committee.

READ MORE: Jim Sillars writes directly to Nicola Sturgeon over alleged code breach

During the six hour hearing the former first minister alleged there had been a "calculated and determined" effort to suppress evidence relating to the government's unlawful handling of complaints made against him. 

He also claimed that the government was given legal advice in October 2018 that its case would not be successful, but continued with the action.

He maintains such an approach was a breach of the ministerial code by Nicola Sturgeon.

In written evidence to MSPs, published last Monday, Salmond said: "Further once the Judicial Review had commenced, and at the very latest by October 31st 2018 the Government and the First Minister knew of legal advice from external counsel (the First Minister consulted with counsel on 13th November) that on the balance of probability they would lose the Judicial Review and be found to have acted unlawfully.

READ MORE: Holyrood vote of no confidence: Who has faced one?

"Despite this the legal action was continued until early January 2019 and was only conceded after both Government external counsel threatened to resign from the case which they considered to be unstateable. This, on any reading, is contrary to section 2.30 of the Ministerial Code."

This afternoon, the Daily Record's political edtior Paul Hutcheon's tweeted: "I am hearing the Scottish Greens will back the motion of no confidence in John Swinney unless the Government provides the Salmond Inquiry with the evidence it needs."

Swinney has failed to comply with two parliamentary votes calling for the publication of legal advice received by the Scottish Government relating to Salmond's successful judicial review.

The court found the government had mishandled the complaints made by two civil servants and that the process was unlawful and unfair and "tainted by apparent bias."

READ MORE: Henry McLeish calls for swift end to Salmond-Sturgeon dispute

The former first minister was awarded more than £500,000 by the court. Salmond has also called for Permanent Secretary Leslie Evans, who was overall in charge of the unlawful policy and how it was implemented to resign.

A one-line motion was submitted with parliamentary authorities today with the Conservatives aiming for a debate tomorrow afternoon.

They hope to secure the publication of the legal advice before Nicola Sturgeon appears at a Holyrood committee on Wednesday.

In December, Swinney said he was keen to find a "practical way" to hand over the evidence to the committee examining the government's handling of harassment complaints, but no such arrangement has yet been made.

The Tories say they will withdraw the vote if the government publishes the legal advice.

The Scottish Conservative leader Douglas Ross said: "We gave John Swinney one more opportunity to respect the will of the Scottish Parliament. He has failed to do so.

"Opposition parties have united twice already to demand the legal advice is released. We now call on them to do so a third time.

"We are still willing to withdraw this motion at any point, if the government respects the will of the Scottish Parliament and publishes the legal advice."

Anas Sarwar, the new Scottish Labour leader, said his party would support the motion if the advice remained unpublished.

Speaking to the media before the Tories lodged the motion of no confidence, Sarwar said: "John Swinney has got an opportunity to hand over the legal advice that parliament, by a clear majority, has demanded of him on two occasions.

"And if he fails to do so, he is deliberately thwarting the work of a parliamentary committee, he is deliberately acting against the will of parliament, and we would have no choice but to vote against him in a vote of no confidence in that circumstance.

"So the ball is in his court, it's up to him whether he's going to do what's asked of him by parliament, or whether he's going to force us to vote against him in a vote of no confidence."

If the motion goes to a vote, it would be the second time in less than a year that Swinney would face such a debate on his position.

In August, he survived a no-confidence vote thanks to the backing of the Scottish Greens.

Other opposition parties supported the motion due to Swinney's role in the scandal surrounding estimated pupil exam grades.

A Scottish Government spokeswoman said the committee had already seen "detailed evidence" on its legal position at all key points during the judicial review.

The spokeswoman said earlier: "If there is a need [for] further information, the Scottish Government stands ready to discuss that with the committee.

"We are conscious that we must enable the committee to fulfil its remit without creating a general waiver of legal privilege that could limit the ability of future Scottish Governments to request and receive candid legal advice in future litigation."

The LibDems have said they will also backing a no confidence motion. 

Taking questions at the committee on Friday, Salmond said rules were in place to allow legal advice given to the government to be released if it was "in the public interest" and pointed to previous circumstances when advice was published.

He said: "There is an understandable reason for reluctance to reveal legal advice, as a general rule, but the rules, as drawn up, provide for exceptions in the public interest.

"There have been a number of precedents in the past—I am thinking of the blood contamination inquiry, for example.

"Although every instance is going to be different, I think that most people, judging the current issue, would say that, after two parliamentary votes, that legal advice should and must be furnished.

"It might be that something should be written into either the ministerial code or the standing orders of the Parliament to make that clear. I am just amazed that you would have to go that far to ensure that that is done. The normal assumption would be that ministers would follow a clearly expressed will of the Parliament when they are able to do so."