Nicola Sturgeon‘s future as First Minister is hanging in the balance today as she faces a grilling from MSPs and demands she resign over extraordinary claims she broke strict rules and lied to Parliament.
Last night Scottish Tories said they would force a vote of no confidence after two senior figures backed up many of Alex Salmond’s claims about her in explosive submissions to the Holyrood inquiry over the botched investigation into complaints about him.
One said that the March 29 meeting in the Scottish Parliament between Ms Sturgeon and Mr Salmond’s chief of staff – which the first minister claims to have ‘forgotten’ – was about the sex abuse allegations.
The other confirmed Mr Salmond’s claim that one of Ms Sturgeon’s aides named one of the accuser’s to the former first minister’s chief of staff.
Breaking the ministerial code is considered a resignation matter – and if Ms Sturgeon is found to have been in breach by misleading Parliament on what she knew, and when, she will come under immense pressure to quit.
The potentially devastating new evidence came as legal documents revealed the Scottish Government was warned that it was heading for defeat in its legal battle with Mr Salmond.
Lawyers told Ms Sturgeon’s administration the court fight against the former First Minister was doomed three months before he eventually won the case.
The warnings were shared with senior officials including the Lord Advocate, but the Government pressed on with the case.
The decision left taxpayers to pick up a bill of more than £500,000 when the investigation was branded ‘unlawful’ and ‘tainted by apparent bias’ by the Court of Session.
The revelations pile pressure on Ms Sturgeon as she prepares to face a grilling from MSPs at the inquiry today, in a session expected to last at least five hours.
Last night, the Conservatives said they intend to call for a motion of no confidence in Ms Sturgeon at Holyrood, putting her career on the line.
Scottish Tory leader Douglas Ross said: ‘Credible witnesses have now backed up Alex Salmond’s claims and the legal advice shows the Government knew months in advance that the judicial review was doomed but they still went on to waste more than £500,000 of taxpayers’ money.
‘There is no longer any doubt that Nicola Sturgeon lied to the Scottish parliament and broke the ministerial code on numerous counts.
‘No First Minister can be allowed to mislead the Scottish people and continue in office, especially when they have tried to cover up the truth and abused the power of their office in the process. The weight of the evidence is overwhelming. Nicola Sturgeon must resign.
‘No evidence she can provide tomorrow will counter the claims of numerous witnesses or refute that her Government ignored the legal advice for months and lost more than £500,000 of taxpayers’ money in the process. We will be submitting a vote of no confidence in the First Minister.’
Nicola Sturgeon ‘s future as First Minister is hanging in the balance today as she faces a grilling from MSPs and demands she resign over extraordinary claims she broke strict rules and lied to Parliament
Nicola Sturgeon leaves her home this morning. She faces a grilling by the Scottish Parliament today over claims she misled Parliament about when she knew of sexual harassment allegations against her mentor and former first minister Alex Salmond
In six hours of brutal testimony last week, Alex Salmond laid out a case that senior SNP figures conspired to try to force him out of public life over harassment claims
The Scots Tories’ allegations about Ms Sturgeon include repeatedly misleading the Scottish Parliament about when she first knew of the allegations against Mr Salmond, delaying settling the judicial review despite legal advice, and meeting Mr Salmond on government business without any officials present or records being taken
What are the key issues in the row engulfing SNP?
How and why did the Scottish government mishandle allegations against Alex Salmond?
The Scottish government launched an investigation in 2017 after two women made formal complaints against Alex Salmond.
He launched legal action against the government’s handling of the investigation and won a judicial review in January 2019, receiving £512,000 to cover his legal fees.
The parliamentary inquiry is examining how ministers and civil servants conducted the probe.
Mr Salmond was charged with 13 counts of sexual assault, including attempted rape, but was acquitted of all charges in March 2020.
Mr Salmond has claimed he was the victim of a conspiracy by senior SNP figures to end his role in public life.
What did Nicola Sturgeon know and when?
Ms Sturgeon originally told MSPs she learned of complaints against Mr Salmond on April 2, 2018, when the pair met at her house.
That meeting is crucial as it is unclear whether it was SNP business, or government business – which should have been officially recorded.
Peter Murrell, the chief executive of the SNP and Ms Sturgeon’s husband, initially said he was not at home, but later revealed that he arrived home during the discussion.
He insists he did not ask what they were talking about.
Ms Sturgeon has also admitted she ‘forgot’ about a discussion with Mr Salmond’s ex-chief of staff four days earlier where they talked about the issue.
The ministerial code says that ‘ministers who knowingly mislead the parliament will be expected to offer their resignation to the First Minister’.
Ms Sturgeon is facing a separate independent investigation led by James Hamilton, who has to decide if she broke the ministerial code. However, it is thought that she is the final arbiter of whether the code has been breached.
Does Mr Salmond have evidence of a conspiracy against him?
Mr Salmond has said he is the victim of a ‘prolonged, malicious’ conspiracy by senior SNP and government figures.
He has suggested Mr Murrell was part of efforts to damage him.
Ms Sturgeon has demanded he presents hard evidence that is the case. However, he insisted that he is not in the dock and the government has already conceded it acted illegally.
Why was Mr Salmond’s evidence to the inquiry redacted?
Mr Salmond’s submission to the inquiry was released online on Monday, but the Crown Office raised concerns with Holyrood about it, asking for redactions.
He has raised questions about why the step was taken and whether it amounted to inappropriate interference.
On a day of major developments, Duncan Hamilton, QC, challenged a series of Ms Sturgeon’s claims about her meetings with Mr Salmond and backed up the former SNP leader’s assertions.
In a ten-page submission, he confirmed that the April 2 meeting between Mr Salmond and Ms Sturgeon in her home had been arranged to discuss the Government probe into complaints – despite her claim in written evidence that she thought it was going to be about party business.
Mr Hamilton, a legal adviser to Mr Salmond, also confirmed the former First Minister’s claim that a senior Government official named one of the complainants to his former chief of staff, Geoff Aberdein, in early March 2018.
He said that his evidence was given ‘to the very best’ of his recollection, adding: ‘I am prepared to provide the same evidence under oath in an affidavit if that is considered necessary.’
Mr Hamilton said he is aware of who the official is – and was told on a conference call which included former SNP spin doctor Kevin Pringle.
Speaking in parliament last week, Ms Sturgeon said that to ‘the very best of my knowledge, I do not think that happened’.
The First Minister has repeatedly insisted she believed the meeting was to discuss SNP business and this is why no official record was made.
But Mr Hamilton, who attended the meeting between Mr Salmond and Ms Sturgeon, said: ‘I was invited to that meeting and travelled to it along with Mr Salmond and Mr Aberdein. I would further note that the letter received from the Scottish Government [informing Mr Salmond of the Government probe] was the sole focus of the meeting.’
Mr Hamilton also backed up Mr Salmond’s claim that Ms Sturgeon offered to intervene in the investigation – as this was an ‘important aspect’ of discussions held at her home.
After leaving the meeting, Mr Hamilton said it was discussed with Mr Salmond and Mr Aberdein as they felt mediation ‘seemed very likely’. But he admitted that Ms Sturgeon later changed her mind.
He added: ‘I can confirm that the First Minister did offer to assist. We discussed mediation. My clear recollection is that her words were ‘if it comes to it, I will intervene’.
‘From a legal perspective, that was the most important aspect of the meeting. I therefore remember it clearly.’
Mr Hamilton said that Mr Salmond had waived his legal privilege to allow the submission backing up his side of events to be published.
The evidence submission made on the eve of Ms Sturgeon’s appearance at committee goes through several points made by Mr Salmond in relation to the meeting at the SNP leader’s home in April 2018.
He also confirmed that a meeting between Ms Sturgeon and Mr Aberdein in her parliamentary office on March 29 had been pre-planned to discuss the harassment complaints against Mr Salmond.
Mr Pringle, a former SNP director of communications, also wrote to the inquiry backing up key claims made by Mr Salmond.
He said he could confirm, following conversations with Mr Aberdein, that he ‘is in no doubt that a complainant’s name was shared with him’ at a meeting about the complaints.
And he knows Mr Aberdein ‘was clear that the purpose of the meeting on March 29, 2018, was to discuss the two complaints that had been made against Mr Salmond’.
Key witnesses contradict Sturgeon’s account of key meeting in early 2018
Duncan Hamilton, Mr Salmond’s lawyer
‘I can confirm that the First Minister did offer to assist. We discussed mediation. My clear recollection is that her words were: ‘if it comes to it, I will intervene.’
On the April 2 meeting: ‘The letter received from the Scottish Government [informing Mr Salmond of the government probe] was the sole focus of the meeting.
‘I can also confirm that I was told the name of a complainant by Mr Aberdein in the early part of March 2018… The name of the complainant had been given to Mr Aberdein by a senior government official.’
Kevin Pringle, Mr Salmond’s former special adviser
‘I can confirm from my conversations with Mr Aberdein that he is in no doubt that a complainant’s name was shared with him at the meeting.
‘I know he was clear that the purpose of the meeting on 29 March 2018 was to discuss the two complaints that had been made against Mr Salmond.’
The Tories intend to submit the motion of no confidence to the parliamentary bureau today and want it to be debated as early as this afternoon or tomorrow.
A Scottish Labour spokesman said: ‘Nicola Sturgeon has serious questions to answer.
‘We will give her the opportunity to present her evidence to the committee and answer those questions.’
A Scottish Liberal Democrat source said: ‘Our view is that this looks very serious for the First Minister, both in terms of the claims she has made about complainants’ names being leaked to Mr Salmond’s team and her Government’s handling of the judicial review but Nicola Sturgeon deserves her day to respond to these allegations before we decide what to do next.’
A spokesman for Ms Sturgeon said: ‘The First Minister will address all of the issues raised – and much more besides – at the committee tomorrow, while the independent adviser on the ministerial code will report in due course.
‘But to call a vote of no confidence in the middle of a pandemic, before hearing a single word of the First Minister’s evidence, is utterly irresponsible.
‘It is for the public to decide who they want to govern Scotland and – while we continue to fight the pandemic – with the election campaign starting in just 20 days, that is precisely what they will be able to do.’
SNP Westminster leader Ian Blackford this morning said he was confident Ms Sturgeon would be ‘exonerated’ after she has appeared before the Holyrood inquiry.
He told BBC Radio 4’s Today: ‘Let these allegations be put to the First Minister and I know she will answer them.
‘She is a woman of integrity and honesty and I fully expect that at the end of this process, and we are very close to that, that the First Minister will be exonerated and in particular will be exonerated by the standards commissioner.’
Asked where he had asked the Lord Advocate why he followed a different ‘course of action’ to that recommended by his external council when it came to Mr Salmond’s trial, Mr Blackford replied: ‘I’m not part of the Government and these conversations take place within government.
‘Of course I’ve had conversations with colleagues and the First Minister on a regular basis.
‘I know what the Scottish Government did right through this is make sure that due process took place and crucially, when the Government reached that determination that the case wasn’t stateable, that the Government moved extrajudicially to move this to an early conclusion.’
The devastating proof that Nicola Sturgeon’s SNP government chose to ignore it’s own legal advice
Lawyers warned the Scottish Government was heading for defeat in its court battle with Alex Salmond more than three months before it lost the case.
In a major development which piles more pressure on Nicola Sturgeon, it emerged yesterday that they warned in September 2018 there was ‘a real risk that the court may be persuaded by the petitioner’s case in respect of the ground of challenge based on ‘procedural unfairness’.’
Legal advisers then informed officials on October 31 of a ‘very real problem’ which eventually led to Mr Salmond winning the case.
An ‘urgent note’ issued by senior counsel highlighted prior contact between the official who investigated complainants and a woman making the allegations.
Roddy Dunlop, QC, who wrote the note, said he had contacted the Lord Advocate, James Wolffe, QC, to alert him to his concerns, ‘and, frankly, as a sense check’.
Mr Wolffe shared his concerns about the potential ‘repercussions’ for the case, he said.
In a 13-page document to the SNP administration, the Government’s lawyers were asked for their ‘views on the merits of the petition [brought by Mr Salmond] and the prospects of successfully resisting the judicial review proceedings that have been raised’ (left). Senior Counsel for the Scottish Government Roddy Dunlop QC of Axiom Associates then raised the prospect of conceding the point on October 3 (right)
Allegations, discussions, denials and a ‘forgotten’ key meeting between Sturgeon and Salmond
November 2017: Allegations regarding Alex Salmond’s behaviour are raised with the SNP by Sky News.
Nicola Sturgeon said she spoke to him about this – and he ‘denied it’. No further action was taken.
March 29, 2018: Ms Sturgeon meets Geoff Aberdein – Mr Salmon’s chief of staff – in her Scottish parliament office where she has admitted they discussed the possibility of a meeting with Mr Salmond. Ms Sturgeon – after initially forgetting about this meeting – says there was ‘the suggestion that the matter might relate to allegations of a sexual nature’.
April 2, 2018: Ms Sturgeon and Mr Salmond meet at the First Minister’s home. According to Ms Sturgeon, this is the first time she heard of the complaints made against him. Despite this, she has insisted that the matters discussed were party business.
September 14, 2018: A judicial review is launched after complaints by Mr Salmond over the fairness with how the claims against him were handled.
January 8, 2019: The Scottish government conceded defeat in the judicial review a week before it was due to launch. Mr Salmond wins £500,000 in legal fees. The court ruled the probe into Mr Salmond had been unlawful and tainted by apparent bias.
January 2019: Ms Sturgeon tells MSPs that Mr Salmond first told her about a probe into him on April 2.
March 23, 2020: Alex Salmond is cleared of all sexual assault charges and his supporters demanded a full inquiry into the Scottish Government’s handling of the scandal.
October 7, 2020: Ms Sturgeon claims she ‘forgot’ about March 29, 2018, meeting with Mr Aberdein.
January 24, 2021: Speaking on the Andrew Marr show, Ms Sturgeon denies misleading the Scottish Parliament after ‘forgetting’ to tell MSPs about her meeting with Mr Salmond’s aide on March 29, 2018.
February 2021: The High Court in Edinburgh rules Mr Salmond’s evidence claiming his former chief of staff met with Ms Sturgeon on March 28, 2018, to discuss sexual assault allegations against the former first minister can be released.
The legal advice was finally published last night after Deputy First Minister John Swinney had looked likely to lose a vote of no confidence tabled by the Tories.
Taxpayers were landed with a bill of more than £500,000 when the Scottish Government investigation into Mr Salmond was described as ‘unlawful’ and ‘tainted by apparent bias’ by the Court of Session in January 2019.
An email sent to government officials by Mr Dunlop, now Dean of the Faculty of Advocates, at 10.50pm on October 31, said: ‘I have just discussed this with the Lord Advocate, as I am very concerned indeed. He has suggested a short note setting out my concerns, and this is now attached.
‘I am sorry to be sending this to you at all, let alone late at night on Halloween, but I’m afraid I see no other option.’
In a detailed report headed ‘URGENT note by senior counsel’, he explains that one of the complainers first made the complaint to Scottish Government HR official Judith Mackinnon, who went on to become the investigating officer in December 2017.
He says this is a ‘concern’ as the complaints procedure sets out there must be ‘no prior contact’.
He said: ‘I consider that this presents a very real problem indeed… If I am correct in the views expressed above, then the procedure was not followed: rather, an express embargo was ignored in a way which may well vitiate the entire proceedings.’
Mr Dunlop then goes on to add that ‘arguably that infects all that followed thereon’.
He said the Lord Advocate ‘has also indicated that he shares my firm advice that this issue will have to be disclosed, and my concern as to the potential repercussions for the wider case’.
Mr Dunlop also said: ‘A swift decision is going to have to be taken on whether to concede (a) the issue is disclosed and any argument based thereon then resisted, or (b) the issue is disclosed and the petition then conceded as a result thereof.
‘I can well understand the angst that even suggesting (b) will provoke, but if the proceedings are vitiated then it makes little sense to continue to defend the indefensible.’
On December 6, 2018, legal advisers told ministers in their view the ‘least worst option’ would be to concede the petition. They wrote: ‘We cannot let the respondents sail forth into January’s hearing without the now very real risks of doing so being crystal clear to all concerned.’
Scottish Tory leader Douglas Ross said: ‘Despite the Scottish parliament backing two Scottish Conservative motions to release the legal advice, the SNP never even bothered to lift a finger to actually try and publish it.
‘It’s jaw-dropping that they didn’t even ask if the Lord Advocate would allow it to be published. Instead, they let the public and press think he was the block on its release, when it was SNP ministers all along.
‘John Swinney refused to even consider publishing the legal advice until his job was on the line.’
Mr Swinney said: ‘These documents are clear. Our legal advice was optimistic about the Government’s prospects for success at the start. It became gradually but progressively less optimistic over time. It was only in December that the advice concluded that our case was no longer stateable and we should concede. As late as December 11, ministers were advised that we should continue.’
He added: ‘Significantly, however, this comprehensively disproves claims that we had continued the case in defiance of legal advice.’
I have just discussed this with the Lord Advocate, as I am very concerned indeed. He has suggested a short note setting out my concerns, and this is now attached. I am sorry to be sending this to you at all, let alone late at night on Halloween, but I’m afraid I see no other option.
As presently advised, I consider that this presents a very real problem indeed… If I am correct in the views expressed above, then the procedure was not followed: rather, an express embargo was ignored in a way which may well vitiate the entire proceedings.
I can well understand the angst that even suggesting (conceding the case) will provoke, but if the proceedings are vitiated then it makes little sense to continue to defend the indefensible.
BLOW-BY-BLOW: THE SEVEN WARNINGS NICOLA STURGEON’S GOVERNMENT IGNORED THAT THEIR CASE WAS DOOMED
by JACK WRIGHT for MailOnline
Scottish First Minister Nicola Sturgeon is facing calls from Opposition MSPs to resign after her Government published bombshell legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond.
Deputy First Minister John Swinney agreed to hand over the papers under threat of a no-confidence vote, and admitted ‘reservations were raised’ by lawyers about the way allegations about Mr Salmond were investigated.
The Scottish Government launched an investigation into allegations of sexual harassment by the former First Minister which was found to be unlawful, unfair and ‘tainted by apparent bias’ because of prior contact between the Investigating Officer and two of the women who complained.
Redacted legal advice published by Mr Swinney last night showed that SNP ministers were warned they had ‘a very real problem’ defending their legal battle with Mr Salmond more than two months before it finally collapsed.
Advice given to the Scottish Government on October 31, 2018 said there was ‘an extremely concerning’ issue that could gut their entire case – and that the ‘least worst option’ would be to concede the petition.
They wrote: ‘We understand how unpalatable that advice will be… But we cannot let the respondents sail forth into January’s hearing without the now very real risks of doing so being crystal clear to all concerned.’
MailOnline has gone through each document published by the Scottish Government to help you make sense of the political scandal which is rocking the nation.
SEPTEMBER 27, 2018: ‘RISK IS THAT WITNESS STATEMENTS AND INITIAL REPORT BY INVESTIGATING OFFICER WERE NOT SHARED WITH SALMOND’
In his letter published to Linda Fabiani, MSP chair of the Committee on the Scottish Government Handling of Harassment Complaints, Mr Swinney said legal advice from September 27, 2018 from senior and junior Counsel ‘sets out an assessment of the merits of the petition brought by Mr Salmond and the Government’s prospects of defending the proceedings at that point’.
In a 13-page document to the SNP administration, the Government’s lawyers were asked for their ‘views on the merits of the petition [brought by Mr Salmond] and the prospects of successfully resisting the judicial review proceedings that have been raised’.
The assessment explains that some of the grounds of challenge concern the validity and fairness of the Procedure for handling complaints against ministers and former ministers that was put in place in early 2018, while others concern the way in which the Procedure was applied to Mr Salmond.
The lawyers say that ‘several grounds of challenge are in our view ‘time barred’, arguing that ‘complaints about the validity and fairness of the Procedure itself… should have been brought within 3 months of 7 March 2018, being the date on which the petitioner first became aware of the complaints and the investigation’.
Though they say they believe that ‘the majority of the grounds of challenge are weak and should be capable of being resisted successfully’, they crucially concede: ‘We think that there is a real risk that the Court may be persuaded by the petitioner’s case in respect of the ground of challenge based on ‘procedural unfairness”.
They conclude: ‘We consider that the areas of greatest risk are in relation to the fact that witness statements and the initial report prepared by the investigating officer were not shared with the petitioner’.
In his letter to the Committee, Mr Swinney spun this by saying that the advice ‘confirms that the majority of the grounds of challenge raised by Mr Salmond were assessed at that time as ‘weak’ and were considered capable of being resisted successfully’.
He added: ‘The document confirms that the Scottish Government was justified in defending the judicial review brought by Mr Salmond.’
OCTOBER 30-31, 2018: ‘IT MAKES LITTLE SENSE TO CONTINUE TO DEFEND THE INDEFENSIBLE’
Writing to the Committee, Mr Swinney said legal advice to the Scottish Government between October 30-31, 2018 demonstrated ‘the development of Counsel’s concerns around the issue of prior contact between the Investigating Officer and the two [Salmond sexual harassment] complainers and whether this could be reconciled with the text of paragraph 10 of the Scottish Government’s Harassment Procedure’.
After Mr Salmond’s lawyers asked for information from the Scottish Government ‘when, by what means and in what terms the complainers first initiated their complaints’, lawyers advising the Scottish Government raised ‘a discussion between the IO [Investigating Officer] and Complainer B’.
Senior Counsel for the Scottish Government Roddy Dunlop QC of Axiom Associates then raised the prospect of conceding the point on October 31, describing the issue as ‘extremely concerning’.
He warned: ‘The concern that arises is that the answer to the question ‘when, by what means and in what terms the complainers first initiated their complaints’ is that Complainer B, as I understand the position, first made her complaint to Judith McKinnon, Deputy Director of the People Directorate, in December 2017.
‘That is of concern because it was, of course, Ms McKinnon that was subsequently appointed as the Investigating Officer under the Procedure which is presently under challenge. […] I am told that it was thought that this did not present a problem to Ms McKinnon’s appointment, as she had no prior involvement with the events giving rise to the complaint.
‘I regret that I do not read the procedure in that way. […] As presently advised I consider that this presents a very real problem indeed. The Petition is resisted on the basis that a fair Procedure was instituted and then followed.
‘If I am correct… then the Procedure was not followed: rather, an express embargo was ignored in a way which may well vitiate the entire proceedings.’
He went on: ‘A swift decision is going to have to be taken thereafter as to whether (a) the issue is disclosed and any argument based thereon resisted, or (b) the issue is disclosed and the Petition is then conceded thereof.
‘I can well understand the angst that even suggesting (b) will provoke, but if the proceedings are vitiated then it makes little sense to continue to defend the indefensible.’
DECEMBER 6, 2018: ‘THE LEAST WORST OPTION WOULD BE TO CONCEDE THE PETITION’
A letter written to Lord Advocate James Wolffe QC on December 6, 2018 stated that: ‘Counsel are of the view that the ‘least worst’ option would be to concede the Petition. They understand how unpalatable that advice will be, and they do not tender it lightly’.
Advice to the Scottish Government by Roddy Dunlop QC and Solicitor Advocate Christine O’Neill warned of ‘substantial further development of the pleadings, accompanied by disclosure of a volume of information about, among other things, the discussions that took place Complainers A and B prior to them making formal complaints’.
They argued that after Mr Salmond’s lawyers introduced new grounds of challenge based on the Investigating Officer’s prior contact with the complainers, ‘with regret, we are now jointly of the view that those grounds are more likely than not to succeed’.
‘At the outset, we recognise the dismay that this advice will cause,’ they wrote. ‘However, we feel it necessary to tender this advice, and the reasons for it, given the views which we have, independently at first and now of consensus, taken in this regard’.
According to Mr Swinney: ‘As the case progressed during November and early December, this issue was identified as the greatest area of risk for the Government’s prospects in the judicial review.’
DECEMBER 11, 2018: LORD ADVOCATE – ‘THERE ARE GOOD POLICY REASONS TO DEFEND THE CASE’
The Deputy First Minister published documents showing that advice from December 6 was discussed in consultation with the Law Officers on December 11.
It states that in a meeting with Lord Advocate James Wolffe (LA), the top Government lawyer was ‘very clear that [there was] no question or need to drop the case’ and that ‘even if prospects are not certain it is important that our case is heard’.
Senior Counsel Roddy Dunlop QC is said to have ‘made clear that his note was not intended to convey that he didn’t think we have a stateable case… They tested most of the arguments including the appointment of the IO [Investigating Officer] and concluded that we have credible arguments to make’.
It went on: ‘The argument on the appointment of the IO will turn on the extent to which we can persuade the court that there is an credible alternative to the objective reading test of para 10 of the procedure which is that what we had in mind was that the IO should not have had any prior involvement in the ‘matters under investigation’ – i.e. the events being complained about.’
The document also reveals that ‘Counsel followed up the question of what Perm Sec [the Permanent Secretary] knew about the approaches from staff by late November’.
‘While we are clear that there isn’t a procedural bar to her knowing the detail at any point they are constructing an argument to the effect that early exposure to the detail resulted in her being predisposed to find against [the] FFM [former First Minister]’, the emails state. ‘The paper work doesn’t shed much light on that.’
Mr Swinney in his letter said that the minutes of December 11 showed ‘that there remained good public policy reasons for continuing to defend the case and benefits in securing the clarity of a judicial finding from the Court’.
DECEMBER 19, 2018: EVIDENCE OF THE INVESTIGATING OFFICER’S PRIOR CONTACT WITH THE COMPLAINANTS ‘MAKES A DEFENCE OF APPOINTING THE IO UNSTATEABLE’
An extraordinary document presented to the Scottish Government by its lawyers showed that SNP ministers were warned that ‘maintaining a defence of the appointment of the IO may be unstateable’.
That morning, at the start of the first part of the Commission, the Government’s lawyers said that they ‘experienced extreme professional embarrassment as a result of assurances which we have given, both to our opponents and to the court, which assurances have been given on instructions, turning out to be false as a result of the revelation of further documents, highly relevant yet undisclosed’.
New documents not handed to the Government’s lawyers showed that the Investigating Officer had had contact with both complainants.
The first document was a letter dated January 17, 2018 which stated: ‘We met on 16 January 2018 to discuss your experience about the alleged misconduct of a former minister. Following this meeting you submitted a formal written complaint… I have been designated at the IO… The purpose of this letter is to invite you to a meeting to discuss your complaint in more detail’.
A document presented to the Government by its lawyers showed that SNP ministers were warned ‘maintaining a defence of the appointment of the IO may be unstateable’
Legal advice warns: ‘This letter suggests that there must have been other communications with Ms A in advance of the meeting of 16 January’.
The second document referred to an email thread which showed that there ‘must have been further contact undocumented in which the IO agreed to meet [complainant] Ms B. It is unclear whether this preceded or post dated the making of the complaint’.
The lawyers told the Scottish Government: ‘The complaint had only just been made. No one had appointed an IO for this complaint. The IO has effectively appointed herself in that regard.
‘It seems inevitable, unless very prompt action indeed had been taken, [Redacted] see Ms B [Redacted] before the complaint was actually made, and accordingly before the IO could have had any legitimate interest in speaking to Ms B’.
The lawyers then warned: ‘As to the late nature of the revelation, this is unexplained, and frankly inexplicable. Given the nature of the searches described by as having been undertaken, we regret that we simply cannot understand why these documents have been made available only now.
‘All of this gives rise to two concerns. First, we are now in a position where we think that maintaining a defence of the appointment of the IO may be unstateable.
‘Given the timescales we are reluctant to take a final view on this, but there is a real risk that we so conclude. Second, we are each in a position which is, so far as dealings with the other side and the court are concerned, close to untenable’.
According to Mr Swinney: ‘Counsel’s advice of 19 December following the Commissioner hearing that day… reflect[ed] the pressurised atmosphere of the process of identifying and handing over documents.
‘As has been acknowledged in evidence to the Committee, the Scottish Government’s handling of that process was flawed and this is regrettable. This, along with the subsequent Commission hearing on 21 December, was the moment at which the Scottish Government’s case became no longer stateable.’
DECEMBER 29, 2018: LAWYERS OFFICIALLY ADVISE SNP MINISTERS TO CONCEDE SALMOND’S PETITION AFTER ‘WATERSHED’ HEARING
Legal counsel advised the Scottish Government to conceded Mr Salmond’s petition against its handling of its probe into sexual harassment allegations.
They said: ‘As you are aware, Counsel has offered advice on a number of occasions in relation to the prospects of the Scottish Government’s (SG’s) arguments prevailing in court. This advice has principally turned on Counsel’s views on the appointment and actions of the Investigating Officer.
Legal counsel advised the Scottish Government to conceded Mr Salmond’s petition against its handling of its probe into sexual harassment allegations
‘The key point to note is the ‘watershed moment’ of last Friday (21st December 2018), at which point the SG’s case became, in Counsel’s view, unstateable, given what emerged that day about the degree and nature of the contact between the IO and the prospective complainers prior to their formal complaints having been made.
‘This information was contained in documents which were identified and produced for the Commission and Diligence Hearing last week, and had not been elicited by previous document searches.
‘While there is no reason to believe that the IO was motivated by anything other than her desire to fulfil her role properly, we recognise that her actions give rise to a perception that there was an unfairness in the operation of the procedure in this case.’
They also note that: ‘The Lord Advocate and the Director of Legal Services share the view of Counsel about the likely prospects of success in defending the decision at Judical Review and the consequent advisability of conceding the petition at the earliest possibly opportunity.’
The lawyers conclude: ‘Having reviewed the material contained in this note, you may conclude that the Scottish Government is in a position where the only sensible and defensible action is to concede the petition and to plan for managing the attendant reputation and legal risks. The risks associated with proceeding to defend the Judicial Review could appear to be greater.’
According to Mr Swinney: ‘This was a shared view of both internal and external legal advisers. The case was reviewed and conceded quickly after this, taking account of further internal legal advice on the terms of the concession, which we are also sharing.’
DECEMBER 31, 2018: LORD ADVOCATE RECOMMENDS ‘CAREFUL’ CONCESSION OF SALMOND’S PETITION
Lord Advocate James Wolffe told SNP ministers that ‘the concession should be narrowly framed to reflect accurately and carefully the legal basis upon which Ministers are conceding the petition; and the basis of the concession should be explained as fully as it can be’.
‘It may be unlikely that it will be possible to avoid the phrase ‘apparent bias’ being used at all, in all communications (including with the court),’ Mr Wolffe went on.
‘However, the use of that phrase should, in my view, be minimised, and should always be coupled with an appropriate explanation, intelligible to a lay person, of what that means – ie that the process must be seen to be impartial as well as actually impartial – and what it does not mean (ie that the process was actually tainted by bias).’
Writing yesterday, the Deputy First Minister insisted: ‘The documents published today demonstrate that the Scottish Government did not ignore legal advice in continuing to defend the judicial review, contrary to the terms of the Scottish Ministerial Code or the Civil Service Code.
‘The documents demonstrate that there was no ‘malicious’ intent against Mr Salmond. The Scottish Government was within its rights to defend a judicial review raised against it by Mr Salmond and to continue to defend it whilst it still had a stateable case. There were good public policy reasons for continuing to defend the case and to seek a determination from the Court.
‘Once it became clear that the Scottish Government no longer had a stateable case after the Commission hearings in late December 2018, the Government quickly reviewed the position and conceded the case.
‘The view that the Government no longer had a stateable case was agreed by both internal and external advisers.’