Dave Penman

Many of you will have views on the evidence and issues that have been dealt with by the Committee on the Scottish Government Handling of Harassment Complaints. Politicians and civil servants will rightly be held to account for what they did or didn’t do, with the committee making its determinations on the evidence. What I want to deal with here are the conspiracy theories that emanate from these proceedings. Bad enough in the darkest reaches of social media from the tin foil hat brigade, but disappointingly spun in publications from those who should know better and indeed in this very journal from Alistair Bonnington, a former honorary professor at Glasgow University School of Law.

He re-spun a line from a few weeks ago when it emerged that civil servants giving evidence to the committee had received legal advice. This, Bonnington repeated, was obviously “coaching” – even suggesting that it was “training for lying” – apparently ignoring that these were civil servants, giving evidence under oath, who are duty bound by their own code of ethics to tell the truth. It would seem he is even happy to indulge in a conspiracy theory regarding his own profession, with the independent legal counsel presumably happy for a few billable hours to coach those lies.

Instead, imagine for a moment, your employer has told you that you are required to provide evidence under oath on an issue that happened at work. You would have a few questions, including whether you needed a bit of legal advice. Then imagine that the issue has already been the subject of two separate legal cases, including a criminal one, and that there are live court orders that you could potentially inadvertently breach.

The issue you’re going to give evidence about relates to hundreds if not thousands of documents, emails, calls and meetings. You could be asked about any of these from the seven different people questioning you over many hours, all of whom have prepared their questions in advance and who have not only had the benefit of legal advice but also, rightly given the legal sensitivities, have a lawyer on hand during the questioning.

Then consider that those doing the questioning all have their own, sometimes conflicting, personal political agendas, which they will not hesitate to pursue as part of this process. That they will sum up your evidence incorrectly, or misquote previous witnesses, to try to add weight to whatever particular political point they’re trying to score. That they’ll go to the press and on social media before and after your evidence to reinforce their points, pursue their own agendas, and that they have already sought to ignore the procedures that apply for civil servants giving evidence to parliamentary committees.

If you faced this, you might think it is reasonable that your employer provided you with some legal advice in advance. We, as the union that represents many of those giving evidence, certainly did. This is why we pressed the Scottish government to provide legal advice for those giving evidence and that it should also be independent of government. Indeed, whilst the circumstances surrounding this case may be unique, civil servants giving evidence in court, to inquiries and under oath is not. It is common enough for it to be covered in the code that regulates these issues, the Civil Service Management Code. It clearly sets out that employers have an obligation to provide legal support in circumstances such as this.

Your average man or woman on the street may not be familiar with such issues or have encountered it before, but you would expect better of experienced and eminent lawyers, whether they be retired or serving, and indeed those who have also sought elected office. Perhaps not.