The Scottish government on Tuesday bowed to opposition party pressure by publishing legal advice on its court defence of a botched investigation into harassment complaints against former first minister Alex Salmond.
The publication of the 2018 legal advice marked a major climbdown for the minority Scottish National party government, which had defied calls to publish it despite losing two votes of the full parliament on the issue.
The advice documents published on Tuesday chart the growing concern from late September 2018 of the government’s external counsel over their ability to defend the civil service-led investigation into the complaints against Salmond.
On December 19 2018 they wrote about “frankly inexplicable” late provision to them of information about the way the investigation was handled that was highly damaging to the government’s case and in one instance “frankly, alarming”.
“With regret, our dismay at this case deepens yet further,” counsel Roddy Dunlop QC and Christine O’Neill wrote.
The release of the advice marks a new twist in a crisis for Scotland’s SNP government, which centres on Salmond’s allegations that his successor as first minister, Nicola Sturgeon, broke the ministerial code in her handling of harassment allegations made about him. Salmond also claims her closest associates maliciously colluded to drive him from public life, accusations they deny.
In January 2019, the Scottish government accepted that its investigation the previous year into the complaints against him by two civil servants had been “tainted by apparent bias”. At a criminal trial last year, Salmond was acquitted of all of the 13 sexual offences charges against him.
In evidence to a parliamentary committee investigating the government’s handling of the complaints against him, Salmond said officials had been told by external counsel in 2018 that his “judicial review” legal challenge to the investigation was likely to win.
“Despite that advice and the cost of hundreds of thousands of pounds of avoidable legal fees, the Scottish government pressed on with a case they expected to lose,” he said.
The government only changed its mind about publishing the advice on Monday after the Scottish Conservatives announced plans to submit a no-confidence motion against deputy first minister John Swinney, who has been handling evidence requests on behalf of the government, on the affair.
“John Swinney only backed down and U-turned to save his own skin,” said Douglas Ross, Scottish Conservative leader. “It’s a pathetic reveal of what motivates the SNP. It’s not about getting to the truth, it’s only about self-preservation.”
In a letter to the committee, Swinney, who is also Scotland’s education secretary, said the legal advice showed that the government had “good public policy reasons for continuing to defend the case” before mid-December 2018. The government conceded in court the next month.
The government released the documents just hours before Sturgeon is scheduled to appear before the committee on Wednesday morning.
In a nearly six-hour appearance before the committee on Friday, Salmond suggested the government intentionally drew out its defence of the judicial review in the hope it would be put on hold by the criminal case against him. Swinney said officials had not found any documents that supported the allegation.
Salmond has also accused the Crown Office, Scotland’s public prosecution service, of improperly seeking to stop the parliamentary committee considering key evidence. He told the committee on Friday it was being “asked to do its job with both hands tied behind its back and a blindfold on”.
James Wolffe, who as Scotland’s lord advocate is chief legal adviser to the government and head of the Crown Office, rejected such claims in an appearance before the committee on Tuesday.
Wolffe said parliamentary authorities had redacted parts of Salmond’s published submission on their own legal judgment after the Crown Office wrote to them with concerns about potential breach of a court order protecting the anonymity of Salmond’s accusers.
“The court order specifically restricts the publication of information, it does not prevent the committee from considering that information,” Wolffe said.