Salmond affair: Government refuses to disclose legal files to Holyrood inquiry

One of the inquiry members accused the government of "evasiveness" and urged Nicola Sturgeon to intervene.

The refusal was revealed when the cross-party committee holding the inquiry published a second tranche of evidence received from the government today.

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It included a letter from the Government setting out the background to the judicial review.

It said: “The Scottish Government asserts its privilege over all communications it holds about or in relation to legal advice to the Scottish Government and litigation involving the Scottish Government.

"In addition, documents which form part of the court process in relation to the judicial review are the property of the Court and cannot be disclosed by the Scottish Government, unless they are already in the public domain."

The Government said it would "give a full account of its legal position at various points", but "in accordance with usual practice, it will not disclose the internal processes of taking and receiving advice or the scope and nature of any requests for legal advice or any legal advice provided."

The committee is looking at how the Scottish Government botched an in-house probe into sexual misconduct claims made against Mr Salmond in 2018. 

Mr Salmond had the exercise set aside in a judicial review at the Court of Session, forcing ministers to admit it had been unfair, unlawful and “tainted by apparent bias”.

The collapse of the Government’s case in January 2019 left taxpayers with a £500,000 legal bill for Mr Salmond’s costs, and the Holyrood inquiry is now investigating what happened. 

The committee had asked for three lots of evidence from the Government - the first on how the complaints policy used against Mr Salmond was developed; the second on the judicial review; and the third on the investigation of the complaints themselves.

Ms Evans last month angered the committee by failing to meet the deadline it had set for the final lot of evidence, which MSPs had demanded by the end of July.

She said the coronavirus crisis and the need for significant legal checks on the material might it might not be available by the end of August, although it could be later.

The committee’s May request for information on the judicial review was very wide-ranging.

MSPs asked Ms Evans to supply “any information which could be provided in relation to the judicial review to assist it in its inquiry; in particular, the roles and responsibilities in relation to the Scottish Government’s conduct of litigation generally and in this case in particular.

“Also, the Committee wishes to explore the extent to which the Scottish Government kept emerging details and prospects of success under review. 

“It also wishes to explore how the decision to settle was taken, including the timing of the decision and what factors contributed to the cost of settlement.”

However the Government supplied only an 11-page account of the judicial review, and two footnotes totalling another 14 pages..

Although it is a long-standing convention that legal advice to ministers is not made public, it is not an absolute rule, and the convention can be waived if ministers chose to do so and the law officers, the Government’s top legal advisers, agree.

The Scottish Ministerial Code states: “If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter, the Law Officers must be consulted and their prior consent obtained.

“Such consent will only be granted where there are compelling reasons for disclosure in the particular circumstances.”  

Inquiry member LibDem MSP Alex Cole-Hamilton said: "This evasivesness on the part of the Scottish Government does not serve them, or the people of Scotland, well.

"This saga has already cost the taxpayer more than £500,000. It is a slap in the face to not allow the Parliamentary inquiry access to unredacted versions of these documents.

"The First Minister should acknowledge where the public interest lies and order unredacted versions of these documents to be handed over."

A Scottish Conservative spokesperson added: “This committee is going to be vitally important in scrutinising exactly what went on in this case.

“Transparency is absolutely key to ensuring the wider public know exactly what went on.

“We would hope that will be fully considered by the Government in any requests for evidence going forward from the committee.”

In its account of the judicial review process, the Government said it had realised its in-house probe had been flawed in late December 2018, after Mr Salmond recovered evidence from the Government, including calendar entries and text messages.

These showed Judith Mackinnon, the chief investigating officer into the complaints against Mr Salmond, had been in prior contact with his accusers, known as Mrs A and Mrs B.

This was in spite of the Government’s own complaints procedure stating the investigating officer “will have had no prior involvement with any aspect of the matter being raised”.

The Government told the MSPs: “Having regard to the totality of the Investigating Officer’s dealings with the complainers before her appointment as Investigating Officer, the reasonable observer would conclude that there was a real possibility that she could not act impartially as she was required to do by the procedure. 

“The Permanent Secretary therefore concluded on 2 January 2019 that the Scottish Government should concede the judicial review proceedings because of the apparent bias issue.”

The Government was then forced to meet £512,250 of Mr Salmond’s legal costs.

A footnote supplied to the committee showed Ms Mackinnon had discussed Mrs A and Mrs B’s cases with Nicola Richards, the Government’s Director of People, in December 2017.

Ms Mackinnon's note of their discussion said there was “an internal enquiry underway”.

A month later, on 16 January 2018, Ms Richards appointed Ms Mackinnon as the investigating officer after Mrs A made a formal complaint.

“I have thanked [Mrs A] and said that you will be in touch. I have offered her my personal support should she need to contact someone,” Ms Richards said in an email.

In an email headed “options”, dated 19 October 2018, seven weeks after Mr Salmond launched his judicial review, and seven weeks before the Government conceded defeat, Ms Mackinnon told Ms Richards that Mrs B had “raised her complaint directly with me”. 

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The committee is also looking at whether Ms Sturgeon broke the Scottish Ministerial code by having repeated contacts with Mr Salmond while her officials were investigating him.

Earlier this week the Government admitted Ms Sturgeon had a meeting connected to her predecessor which she did not declare to MSPs.

After the judicial review collapse, Ms Sturgeon gave Holyrood the dates of three meetings and two phone calls with Mr Salmond between 2 April and 18 July 2018.

She said Mr Salmond had told her himself about the Government’s misconduct probe - which she was not supposed to know about - at the first of these contacts.

However it emerged during Mr Salmond’s separate criminal trial - at which he was acquitted of 13 counts of sexual assault in March - that there had been another relevant meeting.

Geoff Aberdein, Mr Salmond’s former chief of staff, said he met Ms Sturgeon at Holyrood on 29 March 2018, four days before she met Mr Salmond at her Glasgow home on 2 April.

This meeting was never mentioned by Ms Sturgeon.

Sky News later reported an account of the meeting which said the civil service probe had been discussed, implying Ms Sturgeon had not been open with Holyrood. 

Deputy First Minister John Swinney formally acknowledged the meeting did take place this week when he included it in the remit of the independent adviser on the ministerial code, James Hamilton, who is also looking at whether there was a breach of the rules.

The committee is due to begin its hearings in a fortnight, starting with Ms Evans.