Salmond inquiry warns it may compel Government to hand over withheld evidence

Under the Scotland Act that created devolution, the parliament has the power to "require any person.. to produce documents in his custody or under his control".

The inquiry voiced its “frustration and disappointment” in a blistering letter sent to the Government’s top official demanding key documents be released.

It said: “The Committee insists that you revisit your decision to withhold the vast majority of information... with a view to markedly increasing how much you share given the need to act in the public interest."

It said that, given the need for transparency, the Government should "reconsider" its approach and "waive privilege" due to the importance of this information to the Committee’s remit.

The MSPs on the inquiry said it appeared that “once again” they were having to enter “protracted discussions” with the Government to get the material they needed.

They said they expected “as a matter of absolute urgency” a detailed description of all the files being withheld and the specific grounds for doing so.

The release of the letter by the inquiry marks a sharp escalation in its fight with Nicola Sturgeon’s top official, Permanent Secretary Leslie Evans, who will be its first witness next week.

The Government has refused to hand over swathes of evidence to the inquiry after exerting its “legal privilege” about a civil legal action it lost to Alex Salmond in 2019.

The inquiry had asked for a wide-range of material about the case, but the Government released just 25 pages, asserting “its privilege over all communications it holds about or in relation to legal advice to the Scottish Government and litigation involving the Scottish Government”.  

The committee is looking at how the 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 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.”

In its letter to Ms Evans today, the inquiry makes clear its anger at how little was disclosed.

It said it was “particularly concerned” by the “limited information” the Government offered; the “lack of detail” on which documents were withheld and on what grounds; and the lack of information about the categories and number of documents withheld. 

The MSPs said the Government’s submission failed to reflect the need for transparency and public scrutiny of a judicial review that “cost the public purse in excess of £500,000”.

They told Ms Evans: “The Committee insists that you revisit your decision to withhold the vast majority of information related to the judicial review, with a view to markedly increasing how much you share given the need to act in the public interest.

“We are mindful of the Scottish Government’s repeated commitment to co-operate fully with this Committee in its inquiry. 

“Withholding this amount of information, and providing the Committee with a submission that is lacking in detail on what is being withheld gives the impression that the Scottish Government expects the Committee, once again, to have to enter into protracted discussions with the Scottish Government to extract the information it needs to effectively scrutinise it as part of this inquiry. 

“Therefore the Committee expects, as a matter of absolute urgency, a detailed description of the forms of the documents being withheld and the specific grounds for doing so, including drawing a clear distinction between information the Government is choosing to withhold, for example, due to claiming legal professional privilege (detailing either legal or litigation privilege), and those where there are court imposed restrictions.”

It went on: "The Committee seeks a breakdown of the documents withheld, including those forming part of the process of the case and in each case the Government’s understanding on any restrictions in providing it to the Committee.

"Together with an explanation of any documents that are withheld in their entirety, any absolutely essential redactions in such information should include details of the legal basis for the application of each redaction.

"The Committee will consider your response at its meeting on 18th August and determine what additional steps it must take to get the information it requires.

"The Committee will not hesitate to explore all options available to it to receive the documents it requires for this inquiry if the Scottish Government continues to refuse to provide documents and to provide an adequate explanation for withholding such documents."

Section 23 of the Scotland Act 1998 states: 

(1)The Parliament may require any person—

(a)to attend its proceedings for the purpose of giving evidence, or

(b)to produce documents in his custody or under his control,

This power also extends to committees, provided they are properly empowered under Holyrood's standing orders. 

The inquiry's letter then listed all the court material it was seeking.

For reference in considering the Scottish Government’s response, the Committee is interested in documents covering the court process of the judicial review, including but not limited to:

a. all productions or evidence lodged in process by parties;

b. all affidavits;

c. all interlocutors;

d. all judicial decisions;

e. all pleadings and any adjusted pleadings (with the dates of those adjustments) including;

• The Petition as initially lodged and all documents lodged with it.

• The Answers to the petition on behalf of Scottish Ministers.

• Details of all adjustments made to the Petition during the Adjustment period.

• Details of all adjustments made to the Answers during the Adjustment period.

• Details of any amendments sought to be made by either party.

• Details of all motions enrolled by either party with the court

• All documents lodged by either party with the court and details of when they were lodged

f. all material relating to any requests for disclosure of documents by either party;

g. all material relating to any Commission for the recovery of evidence, including any evidence recovered by such Commissions in unredacted form;

h. all information pertaining to legal fees/costs/expenses;

i. all other formal court documents, including any Minutes of Agreement, Joint Minutes, etc.

• Any Statement of issues produced jointly or separately by parties prior to the scheduled hearing set down for 15 January 2019

• All documents lodged by either party with the court and details of when they were lodged

• The record or any other aggregated copy of the pleadings.

A Scottish Government spokesperson said: "Scottish Ministers remain committed to working with the committee and are giving full consideration to the issues the convener has raised. 

"We welcome the opportunity the parliamentary inquiry will bring to address issues which have been raised – and we will not pre-empt that process.

“We are providing all the relevant information requested by the committee, taking account of the confidentiality, data protection and legal restrictions that apply.”