Legal advice shows Government warned of serious problems in its defence
SNP ministers were warned they had “a very real problem” defending their legal battle with Alex
Salmond, two months before it collapsed.
Newly published legal advice given to the Scottish Government on October 31, 2018, said there was “an extremely concerning” issue that could gut their entire case.
By December 6, 2018, the Government’s outside lawyers were advising ministers to give up.
“Ultimately, our own view is that the ‘least worst’ option would be to concede. We understand how unpalatable that advice will be, and we do not tender it lightly.”
However the Government pressed on regardless, with the
Lord Advocate James Wolffe being “very clear that there was no question or need to drop the case”.
But the Government’s slipshod approach only made things worse.
By December 19, its external counsel were complaining they had been caused “extreme professional embarrassment” by repeated late disclosure and said a defence was potentially “unstateable”.
The Government did not concede until the first week of January 2019.
The advice was only released after months of refusals by the Government following the threat of a no confidence vote in Deputy
First Minister John Swinney.
Despite Holyrood twice voting for its release last November, Mr Swinney only asked the Government’s law officers for permission to release it on Monday.
The material appeared to lend weight to Mr Salmond’s claim that the Government prolonged its defence longer than was legally sound and so abused public funds.
A cross-party committee of inquiry is looking at how the Government bungled a probe into sexual misconduct allegations made against Mr Salmond in 2018.
The former first minister had the exercise set aside in a judicial review in January 2019, showing it had been “tainted by apparent bias” and getting £512,000 in legal costs.
The Government’s key mistake was to appoint an investigating officer, Judith Mckinnon, who had been in substantial prior contact with Mr Salmond’s two accusers instead of someone unconnected, as the Government’s own complaints procedure stipulated.
In late September 2018, Mr Salmond’s challenge was regarded as “weak” and capable of being resisted successfully.
However on October 30, 2018, the Government’s external junior counsel, solicitor advocate Christine O’neill flagged up the possible problem of Ms
Mckinnon’s prior involvement.
This appeared to conflict with the Government’s own procedure on investigating harassment complaints, which said the investigating officer “will have had no prior involvement with any aspect of the matter being raised”.
The next day, senior external counsel, Roddy Dunlop QC, said in an email he had discussed the matter with the Lord Advocate “as I am very concerned indeed”.
In an urgent note, he said Ms Mckinnon’s prior involvement had not been regarded as a problem when she was appointed, as she was not involved in the events giving rise to the complaints.
However he went on: “As presently advised, I consider that this represents a very real problem indeed. 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.
“It would be extremely wrong for me to suggest that this revelation is anything other than an extremely concerning one.
“I should stress, of course, that I am not suggesting bad faith on the part of anyone, least of all Ms Mckinnon.
“But the fact remains that the procedure indicates, to my mind, at least, that she was not eligible to be appointed as IO [Investigating Officer]. If I am right in that regard then arguably that infects all that followed thereon.”
In a further opinion on
December 6, Mr Dunlop and Ms O’neill, said the Government’s least worst option was to concede the case based on Ms Mckinnon’s prior involvement. The note listed a series of calls and meetings between Ms Mckinnon and the women, which by now Mr Salmond’s lawyers were saying breached the Government’s own procedure.
It said: “The IO did not come to the matter ‘fresh’: rather, her appointment followed discussions with the complainers in which options were discussed; one complainer was told that she would be advised if others came forward; and indeed the terms of the not-yetin-force procedure were put to the complainers for their views.
“This is, we regret to advise, a substantial problem.”
They warned not conceding could lead to higher expenses being awarded, as proved the case.
However both the Government’s own law officers, the Lord
Advocate and Solicitor General, were “very clear that there was no question or need to drop the case”.
Mr Swinney said: “The documents 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.”
Labour MSP Jackie Baillie said: “That Counsel were expressing grave concerns in October and that the Lord Advocate wished to continue with proceedings as late as December 2018 simply beggars belief. I look forward to questioning the First Minister on the failings.”