So exactly when did lawyers tell civil servants their case could not be won?
The partial release of legal advice received by the Scottish Government has renewed focus on when the country’s most senior civil servants discovered their actions were indefensible in court. The government was determined to defend a claim by Alex Salmond that their inquiry into allegations of sexual harassment against him had been unfair as the official in charge had previously discussed the complaints with the women involved. They conceded the case a few days before it was due to be heard in court last January. After months of requests, the Holyrood committee was finally shown a government memo summarising the legal advice given to civil servants a few days before Christmas. The committee members, elected MSPS, were ordered to sign legal documents barring them from revealing the contents and had to agree to take no notes.
A heavily redacted version was released two days before Christmas and suggests lawyers may have told civil servants their case was unwinnable months before they finally abandoned their defence.
The document was written by former senior civil servant Sarah Davidson, who said the government’s case became “unsustainable” after the “degree and nature” of prior contact between those who complained of harassment by Mr Salmond and the investigating officer, Judith Mackinnon, emerged. The documents appear to show the extent of that contact became clear on December 21, 2018, prompting lawyers to advise the government to concede the case. A week later, the legal team warned they would quit rather than argue the case in court.
The government conceded before the Court of Session ruling in January found their investigation had indeed been “tainted by apparent bias”. However, the document also shows lawyers gave the Scottish Government advice on whether there was a problem with Ms Mackinnon’s contact on several occasions dating back to at least October. It sets out the “development of advice from counsel” in relation to two issues – whether the investigating officer had broken civil service procedures through her contact with the complainants. Lawyers for Mr Salmond had flagged the issue for months, offering arbitration to avoid court on several occasions. All offers were rejected.
The investigating committee now wants to know exactly when the government was told their actions were probably indefensible and why that advice was not accepted.