Government ‘discounted’ advice in doomed Salmond case defence
NICOLA Sturgeon’s government “discounted” advice from lawyers to end its courtroom fight with Alex Salmond, secret files have revealed.
Documents released only after Ms Sturgeon was questioned by MSPS this week show outside lawyers were forced to make increasingly desperate pleas with her administration to concede.
They were “entirely unconvinced” of the benefits of continuing given the “potentially disastrous repercussions”.
External counsel even said they were ready to withdraw after a multitude of blunders by the Government, including a failure in its “duty of candour” to a court and its top official failing to provide a witness statement, brought the case “perilously close” to collapse.
They said they knew many of their past warnings had been “discounted”, but wanted to be sure the First Minister and others were “absolutely certain that they wish us to plough on regardless” given the potential harm.
They also warned Mr Salmond would take a “scorched earth” approach, heedless of the harm he caused others, and that Ms Sturgeon knew she was “in the crosshairs”.
The dire warnings were made in mid-december 2018, six weeks after a key flaw had been identified in the Government’s case; ministers only formally conceded in January 2019.
The Scottish Tories said it was “devastating” material.
The dramatic comments were in legal advice released yesterday to the Holyrood inquiry into the Salmond affair – the third such tranche since Deputy First Minister John Swinney was threatened with losing his job in a no-confidence vote on Monday, and the second since Ms Sturgeon testified under oath on Wednesday.
The inquiry is looking at how the Government bungled a sexual misconduct probe into Mr Salmond in 2018, which he had set aside in a judicial review challenge.
The Government was forced to agree the process had been unfair, unlawful and “tainted by apparent bias” and Mr Salmond was awarded above-average costs of £512,000.
The former first minister and his supporters claimed Ms Sturgeon unreasonably prolonged the case, and so squandered public money in an abuse of power and a breach of the Scottish Ministerial Code.
After he won his civil case, Mr Salmond was charged with sexual assault and acquitted on all counts.
Mr Swinney yesterday claimed the three lots of legal advice “utterly disprove the conspiracy theory that the Scottish Government delayed concession of the judicial review or ignored advice from counsel, or that there was a plot against Mr Salmond”.
However the new files show an extreme reluctance to concede.
Mr Swinney also added fuel to the conspiracy theory by saying ministers had no minutes of a key meeting at which the First Minister and her senior officials discussed the case with counsel on November 13, 2018.
The Government’s key mistake in the sexual misconduct probe was appointing an investigating officer, Judith Mackinnon, who had prior involvement with the former first minister’s accusers, Ms A and Ms B.
The Government’s complaints procedure stipulated the person should have no prior involvement. Despite external counsel flagging Ms Mackinnon’s role as a “serious problem” on October 31, 2018, Government law officers appeared determined to carry on.
By December 6, external counsel Roddy Dunlop, QC, and Solicitor Advocate Christine O’neill said the “least worst option” was conceding.
But Lord Advocate James Wolffe, QC, the Government’s top law officer, said there was “no question of conceding”.
Ms Sturgeon and her top official, the Permanent Secretary Leslie Evans, were also said to be “unclear” on what had changed to support conceding.
By December 17, external counsel said they could not see the defence prevailing, with “potentially disastrous repercussions” in continuing.
In a blunt note to the Lord Advocate and the head of the Government’s legal directorate Paul Cackette, Mr Dunlop and Ms O’neill said Government errors in the week of December 10 had led them “to consider very seriously whether we were bound to withdraw”.
They said: “We reached the view that we could not properly advise the court that the Scottish Government has discharged its duty of candour”, adding the judge in the judicial review, Lord Pentland, was “unimpressed”.
Problems included the Government redacting documents given to the court without counsel’s consent and Ms Evans failing to give a precognition on what she knew of Ms Mackinnon’s prior involvement with Ms A and Ms B.
Instead of a precognition, the lawyers were sent “four short paragraphs and it is not clear to us that it is in the Permanent Secretary’s own words”.
They also warned Mr Salmond was planning a “scorched earth” approach.
They said: “It is clear that there is no concern on his part as to who might be criticised, or harmed, as a result of these proceedings.
“We understand that this is well understood by those ‘in the crosshairs’ – most obviously the Permanent Secretary and the First Minister.
“If instructions are to proceed notwithstanding then so be it – we are not in a position where we are professionally unable to mount a defence (because, for example, there is no statable defence). We are, however, perilously close to such a situation.
“We are firmly of the view that at least one of the challenges mounted by the petitioner will be successful.
“We are told there are other aspects to the case which justify the running of the defence and that, accordingly, there is no prospect of the petition being conceded.
“That decision is not for us to take and as long as informed consent is given the decision to proceed is one which we must obey.
“We are, however, entirely unconvinced as to what benefit that might arise from the hearing in January might outweigh the potentially disastrous repercussions thereof.
“We cannot let pass uncritically the suggestion that the petition cannot be conceded.
“Accepting that a technical error was made could not sensibly be criticised.
“Given that we genuinely cannot see the defence prevailing in any event, that seems to us the only sensible approach.
“We are acutely aware that much of this has already been said, and discounted. The decision to proceed has been taken by very experienced legal and political minds, who are entitled to proceed as they wish.
“However, we are – independently but also mutually – unable to see that the benefits in proceeding come close to meeting the potential detriments.
“Given the potential for harm we simply wish all concerned – and we include the First Minister in this – to be absolutely certain that they wish us to plough on.”
On December 22, Mr Dunlop said the case had “moved from very difficult to unstatable” in a “watershed moment” involving problematic testimony from Ms Mackinnon.
“Continuing to rest on pleadings that we know to be untrue is liable to result in severe judicial criticism,” he said.
Scottish Tory leader Douglas Ross said: “These are some of the devastating documents the First Minister hoped would never get out. It’s beyond dispute the Government hid evidence from their own lawyers, then ‘discounted’ their advice. The First Minister’s position is more unstable than ever.”
Labour MSP Jackie Baillie said: “The documents confirm the Government refused conceding the judicial review for as long as feasibly possible.
“It is high time that those responsible for this fiasco take ownership of their failings and do the decent thing.”
Mr Swinney said: “These documents demonstrate that the case became unstatable in late December and the Scottish Government conceded quickly afterwards in early January.”
The First Minister’s position is more unstable than ever