Alex Salmond inquiry: Nicola Sturgeon releases WhatsApp messages not mentioned to MSPs

However in written evidence to the parliamentary inquiry into the Salmond affair, Ms Sturgeon included a five page Annex containing 42 messages between the pair.

They show the First Minister and her predecessor arranging meetings after Mr Salmond told her he was being investigated by Scottish Government officials.

They also reveal increasing strain and distrust in their relationship, as Mr Salmond’s requests are rebuffed by Ms Sturgeon’s top official. 

Two civil servants filed formal complaints against Mr Salmond in early 2018 triggering a probe under the Government’s harassment complaints procedure.

The Government botched the probe, leading to Mr Salmond successfully challenging it in court, leaving taxpayers with a £512,000 bill for his legal costs.

Ms Sturgeon told MSPs on 8 January 2019 that she had three meetings and two telephone calls with Mr Salmond between April and July 2018, but did not mention the messages.

They show Mr Salmond keen to have the Scottish Government investigation halted and the complaints resolved by arbitration instead, and to keep the whole matter private.

He warns Ms Sturgeon that a legal challenge would almost certainly lead to the matter becoming public, as would any confirmation that an investigation was underway.

He said his legal advice was that any Freedom of Information requests on the subject could be answered with a “neither confirm nor deny” response.

He said: “It is critical that this happens. There remains a way to resolve this but it requires the PS [Permanent Secretary] to be encouraged to accept that confidential arbitration offers the best solution and to ensure that the FOI is carefully handled.

Transcript of WhatsApp messages  

[22/04/2018, 20:31:29] Alex Salmond: it would be very helpful if I could call you on WhatsApp 10.30am and 12 noon tomorrow 

[22/04/2018, 21:05:25] Nicola Sturgeon: I’ll be in the car until 11 on way to Inverness - so 10.30 will be ok. I’ll not be free again after that until 12.30/1. There will be others in car so I’ll not be able to talk openly...it’ll be later in day before I can be in private. 

[22/04/2018, 22:03:57] Alex Salmond: In which case I will Phone just after 10.30am with update and we can perhaps speak properly later on. 

[31/05/2018, 11:24:01] Alex Salmond: In Glasgow tomorrow - could we meet?

[31/05/2018, 11:39:09] Nicola Sturgeon: Tomorrow’s very difficult - is it urgent? 

[31/05/2018, 11:45:01] Alex Salmond: Next few days. I could do tomorrow evening or Monday from lunchtime onwards. 

[31/05/2018, 11:46:29] Nicola Sturgeon: The only time I could possibly do tomorrow is around 4. Is it about what we spoke about before? 

[31/05/2018, 11:56:46] Alex Salmond: Yes 

[31/05/2018, 11:56:59] Alex Salmond: 4 is fine - same place?

[31/05/2018, 17:07:08] Nicola Sturgeon: Tomorrow is actually proving tricky given other stuff I’ve got on. I’m trying to juggle a couple of things - will confirm later/in morning if 4pm possible and if not suggest alternative. 

[31/05/2018, 19:23:01] Alex Salmond: I suggest just two of us - I can leave you with some material to digest over weekend - Meeting itself need not take long but tomorrow would be best if poss. 

[01/06/2018, 07:51:32] Nicola Sturgeon: Sorry but I just can’t do today - I don’t have time to get home given other stuff. Happy to speak on phone over weekend and see what else is possible. 

[01/06/2018, 09:36:59] Alex Salmond: Phone not appropriate - there is material you need to see and assess privately. Can I come to you Sunday or very first thing Monday? [01/06/2018, 13:37:54] Nicola Sturgeon: I’m not at home at weekend and in Aberdeen on Monday. In any event, I’d prefer a quick chat first to understand the purpose of giving me material. We’ve already spoken about why I think me intervening is not right thing to do. Happy to talk on what’s app at some point over weekend. 

[03/06/2018, 10:15:00] Alex Salmond: My recollection of our Monday 2 April meeting was rather different. You wanted to assist but then decided against an intervention to help resolve the position amicably. Now is different. I was intending to give you sight of the petition for JR drafted by senior counsel. You are a lawyer and can judge for yourself the prospects of success which I am advised are excellent. This will follow ANY adverse finding against me by the PS in a process which is unlawful. You are perfectly entitled to intervene if it is brought to your attention that there is a risk of your Government acting unlawfully in a process of which you had no knowledge. Indeed it could be argued that is your obligation under the Scotland Act is to ensure that all government actions are consistent with Convention undertakings

The JR will be rough for me since the hearing will almost certainly be made public but at least I will have the opportunity to clear my name and good prospects of doing so - but for the Government? One further thing to consider. Thus far we have been able to confine evidence offered to the general (and mostly ridiculous) matters. This has had the benefit of keeping everything well clear of current administration. When we go to Court we will have to produce evidence to demonstrate prior process (which incidentally the PS has admitted!). If you want to discuss privately then I can come to you in the North East on Monday. 

[05/06/2018, 14:02:58] Nicola Sturgeon: Hi - I have been considering your message and what I need to do in light of it. If you still want to meet, I can do tomorrow evening in Edinburgh and update you then. N 

[05/06/2018, 19:24:32] Alex Salmond: Happy to meet - soonest I can get to Edinburgh is around 8.30. I take it this is totally informal, one to one. 

[05/06/2018, 19:42:38] Nicola Sturgeon: Ok - happy for it to be one to one - will have to be either parliament or Bute, whatever you prefer. The alternative if its easier is Aberdeen on Thursday night - I’ll be there from around 8, staying in hotel somewhere near beach ballroom I think. 

[05/06/2018, 20:08:30] Alex Salmond: Yes Thursday much better, thanks. I’ll be there for 8.30 to give you time to settle in. 

[05/06/2018, 20:12:37] Nicola Sturgeon: Ok. It’s the Hilton hotel at the beach. 

[05/06/2018, 20:17:58] Alex Salmond: Grand 

[07/06/2018, 19:00:28] Nicola Sturgeon: You should go to the Platinum reception at the back of hotel later. There’s a private room arranged there for us to meet in. 

[07/06/2018, 19:07:45] Alex Salmond: OK thanks. Traffic was bad but now well on the way. Should arrive c 8.40 and will give 5 minute warning on approach. 

[07/06/2018, 19:09:23] Nicola Sturgeon: I’m running late too - but should be there just before you 

[07/06/2018, 19:14:01] Alex Salmond: OK shall we make it 8.50 so we are not rushing [07/06/2018, 19:25:49] Nicola Sturgeon: I’m ok for as soon as you get there 

[07/06/2018, 19:36:24] Alex Salmond: Grand 

[07/06/2018, 20:46:30] Alex Salmond: Now in Aberdeen 5 minutes or so 

[05/07/2018, 21:18:40] Alex Salmond: Nicola. I have slept on the content of the latest letter from the PS rejecting arbitration. Two points I want to make to you privately. Firstly, the explanation given in the letter is that arbitration is rejected because the SG is confident in the legality of the process. With respect, that entirely misses the point. The SG may well believe it is lawful. My Senior Counsel believes it is unlawful. That’s the whole point of the arbitration. The legality will have to be resolved either in private (in a confidential and binding arbitration) or in public at the Court of Session. The SG, and you, have everything to gain from arbitration. If my legal advice is wrong, I will accept that and the current process proceeds. If the SG legal advice is wrong, you discover that without losing in a public court. Adopting an arbitration process also guarantees confidentiality for the complainers, regardless of what happens. Secondly, the PS has now intimated that an FOI has been submitted. The SG response to that request is of the utmost importance. Confirmation of even the existence of a specific complaint will be sufficient to start a process which leads to the near certainty of these matters becoming public. My legal advice is that a “neither confirm or deny” response which avoids acknowledging the existence of any documents can be issued under section 18 of the FOI Act which covers S38 (1) (b) {personal information}. It is critical that this happens. There remains a way to resolve this but it requires the PS to be encouraged to accept that confidential arbitration offers the best solution and to ensure that the FOI is carefully handled. I hope you will do so but time is now very short. 

[13/07/2018, 11:01:08] Alex Salmond: Grateful for your message via [REDACTED]. Happy to meet privately. Understand you are away from Monday so given developments presumably this weekend best? I have material which it is important for you to see. I will happily come to you. 

[13/07/2018, 11:22:38] Nicola Sturgeon: I’m supposedly on leave from Monday but not going away - I’ll be at home so could do next week if that’s easier (except Thursday/Friday). Weekend is a bit busy with one thing and another - late tomorrow afternoon probably only time that works. Let me know what you prefer. 

[13/07/2018, 14:03:32] Alex Salmond: Great - can we make it tomorrow late afternoon then - I am just rearranging something and will confirm asap. 

[13/07/2018, 15:13:10] Alex Salmond: Tomorrow confirmed for late afternoon. - give me your best time and place. Thanks. 

[13/07/2018, 15:56:10] Nicola Sturgeon: It’ll have to be my house - I should be home by 4 so that’s best time. Just so you know, I have to go out again around 6. 

[13/07/2018, 15:58:44] Alex Salmond: 4 it is then 

[13/07/2018, 15:59:27] Nicola Sturgeon: Ok

[14/07/2018, 15:45:59] Alex Salmond: Ten minutes away

[15/07/2018, 22:42:44] Alex Salmond: Many thanks for making the time yesterday. I am grateful that you will correct the impression being given that you are against arbitration or that it is somehow against your interests. I know that you need to reflect further on how to progress things beyond that and am not blind to the difficulty of legal advice being suspicious of arbitration. I am genuinely at a loss as to what the downside is for anyone, complainers, SG or me or you. The reasons given to date have been meaningless or more recently just a misrepresentation of your position. If there are good legal reasons then surely they can be set out for you/us. I will wait to hear how you are able to proceed. I am also giving much thought to your advice and thinking deeply about how arbitration on process might open up the space and opportunity to address and resolve the underlying matters, as far as is possible, to everyone’s satisfaction

[16/07/2018, 14:57:50] Alex Salmond: [Message content redacted by the Parliament on basis of legal professional privilege of Alex Salmond] 

[18/07/2018, 20:50:37] Alex Salmond: T: [Redacted] 

E: [Redacted] Mr Callum Anderson Levy and McRae Pacific House 

70 Wellington Street GLASGOW G2 6UA 

Private and Confidential 18 July 2018 

Dear Mr Anderson

Thank you for your recent letters, in which you have raised your concern about the fairness of the Scottish Government Procedure. I want, first of all, to assure your client that I am approaching these important issues with the greatest of care and with an open mind. It remains the view of the Scottish Government that our Procedure is fair and legally sound. We have ensured from the outset that your client had every opportunity to provide a statement of his recollection of the events described in the “causes for concern” set out in my letter of 7 March. We granted a number of extensions to the initial deadline for such a statement to be provided. Your client was also offered the opportunity to speak to the Investigating Officer directly but he declined to do so. 

Your client has chosen not to provide a substantive response to the complaints made by Ms A and Ms B (causes for concern A – I) although he has made clear his denial that any harassment took place. Your letter of 26 April included quotations “in short none of the allegations are admitted” and “I categorically deny that I have ever harassed any civil servant”. 

Although you continue to express concern about the overall fairness and legality of the Procedure your letter of 26 April did include a substantive response to causes for concern J – K. That letter also identified 5 witnesses to be interviewed - limited to those causes for concern only. Contact information for those witnesses was provided by you on 8 May. Witnesses were interviewed by the Investigating Officer and their statements were finally agreed by all parties by 28 June after a number of postponements and delays. 

You have proposed arbitration in relation to the Procedure and explained why you consider it to be appropriate. The Scottish Government has explained in previous letters and in exchanges between legal representatives why we do not agree. However, for completeness and to ensure our position is understood we make the following points.

First, we consider that we have given your client a fair opportunity to address the complaints, and that the procedure which we have followed is a fair one. 

· We do not consider that arbitration would be appropriate to the circumstances. This is an investigation of serious complaints made by civil servants involving a former Minister. Submitting the process to an external decision maker would not be appropriate. 

· As the decision maker, I have to balance a range of interests, and to ensure a Procedure which is fair both to your client and to the complainers. Arbitration of the SG process would not involve the complainers. 

· As decision maker I have a duty to bring the investigation to a conclusion as efficiently and timeously as possible. Arbitration would cause unavoidable further delay. 

· However tightly a remit were drawn, it seems unlikely that it would be possible to separate the procedural points which you have raised from issues of substance or content in a way which would allow those procedural concerns to be addressed. Your client has provided a substantive response to causes for concern J – K. However, it remains my view that his interests and those of the investigation as a whole would best be served by him providing a substantive response to each of the causes for concern – and it is a matter of regret that he has chosen not to do so. 

Consequently I am offering your client, even at this late stage, a final opportunity to provide any further representations about the complaints made by Ms A and Ms B. Given the time that has elapsed since first notifying your client of the investigation you must confirm if your client wishes to take up this opportunity no later than 11 am on 19 July. Any further representations must be received by 3 pm on Friday, 20 July if they are to form part of my consideration. 

Should your client choose not to take up this final opportunity I shall proceed to consider the report on the basis of the information he has already provided and will write to you again to inform you of the outcome. 

Yours sincerely 

LESLIE EVANS   

[18/07/2018, 20:52:21] Alex Salmond: As you see the time allowed is tomorrow morning at 11am 

[20/07/2018, 22:37:18] Alex Salmond: A full rebuttal of all complaints went in by the deadline today. Let us see how it is judged.