Sturgeon Government 'discounted' advice to concede legal fight with Salmond

They said the situation was so dire that "potentially disastrous repercussions" lay ahead if it continued.

They warned Alex Salmond would take a “scorched earth” policy, heedless of the harm he caused others, and that Nicola Sturgeon knew she was “in the crosshairs”.

They said many of their previous warnings had been "discounted", and the First Minister and others to be "absolutely certain that they wish us to plough on regardless" given the "potential for harm".

The Scottish Tories said it was "devastating" material.

The dramatic warnings are in legal advice released to the Holyrood inquiry into the Salmond affair which show the Government’s extreme reluctance to concede.

The Government's claimed it had no minutes of a key meeting at which the First Minister and her officials discussed the case with the external lawyers.

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.

After the late disclosure of damning information, the Government was forced to agree the process had been unfair, unlawful and “tainted by apparent bias”.

Mr Salmond was awarded above-average costs, leaving taxpayers with a £512,000 bill.

The Government’s key mistake was appointing an investigating officer, Judith McKinnon, who had extensive prior involvement with the former first minister's accusers, known as Ms A and Ms B.

READ MORE: FMQs sketch - Sturgeon returns

This was contrary to the Government’s own harassment complaints procedure, which said the investigating officer should have no prior involvement.

Despite external counsel flagging Ms McKinnon’s role as a “serious problem” on October 31, 2018, Government law officers appeared determined to carry on.

Ms Sturgeon and Ms Evans discussed the case with counsel on November 13, but Mr Swinney said the Government had no minutes of it.

By December 6, external counsel Roddy Dunlop QC and Solicitor Advocate Christine O’Neill advised that the “least worst option” would be to give up.

But the Lord Advocate James Wolffe QC, the Government’s senior law officer, said there was “no question of conceding”.

Ms Sturgeon and her top official, the Permanent Secretary Leslie Evans, were also reported to be “unclear” on what had changed to make conceding the better option. 

By December 17, external counsel said they could not see the defence prevailing and there would be “potentially disastrous repercussions” in continuing.

They said: “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 regardless notwithstanding the concerns which we have outlined.”

In an extraordinary 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 10 December 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”.

They said: “Having given the question anxious consideration we concluded that we would be entitled to so withdraw but at this stage are not bound to do so.”

Problems included the Government redacting documents given to the court without counsel’s consent and Ms Evans failing to give a precognition about what she knew of Ms McKinnon’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”.

Her failure to produce a precognition statement was “making it (unnecessarily) difficult for us to put the respondents’ best foot forward”.

READ MORE: Alex Salmond and Nicola Sturgeon told to stop 'knocking hell out of each other in public'

In a section about Mr Salmond, they wrote: “It has become increasingly clear that the approach of the petitioner [Mr Salmond] in this matter is one which may appropriately be described as a 'scorched earth' one. 

“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 that 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 that might outweigh the potentially disastrous repercussions thereof. 

"Leaving aside the large expenses bill that would inevitably arise, the personal and political fallout of an adverse decision – especially if, as may be the case, it is attended by judicial criticism – seems to us to be something which eclipses by some way the possibility of helpful judicial comments. 

"That being so, and recognising as we do that the wider political picture is something that others are far better than are we to comment upon, we cannot let pass uncritically the suggestion that the petition cannot be conceded. 

"It would be possible simply to accept (as is our genuine advice as a matter of law) that the appointment of JM as Investigating Officer was, whilst made in bona fide, on reflection indefensible. 

"That would render nugatory all of the other, potentially more harmful, aspects to the challenge. Accepting that a technical error was made could not sensibly be criticised. 

“This would protect those that might otherwise be harmed by the vigorous nature of the challenge that is to be mounted. 

“It would stem the substantial expenses bill that we have no doubt is presently being incurred. 

"Given that we genuinely cannot see the defence prevailing in any event, that seems to us  to be 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 in so doing. 

“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 regardless notwithstanding the concerns which we have outlined.” 

On 22 December 2018, Mr Dunlop warned there had been a “watershed moment” involving Ms McKinnon, when the case became unstateable.

He said that the day before she had said, on oath, that she could not remember a meeting she had with one of the complainers, Ms A, the day before she lodged her complaint.

That left counsel unable to say what had happened at that meeting “and thus unable to rebut the rather obvious inferences that will otherwise be drawn from the fact that it occurred”. 

He said: “If one needed a watershed moment where the case moved from very difficult to unstatable,  that was it. 

“Given the amount of work ongoing I must urge that a view be taken thereon as soon as is possible. 

“Continuing to rest on pleadings that we know to be untrue is liable to result in severe judicial criticism.”

Releasing the documents, Deputy First Minister John Swinney said: “I am completely clear that these documents, taken in their entirety, utterly disprove the conspiracy theory that the Scottish Government delayed the concession of the judicial review or ignored advice from counsel, or that there was a plot against Mr Salmond.”

READ MORE: Nicola Sturgeon's Government says it has 'utterly disproved' Salmond conspiracy theory

Scottish Tory leader Douglas Ross said: "These are some of the devastating documents that the First Minister hoped would never get out.

"The SNP fought two votes in the Scottish Parliament to shut them down and waited until after Nicola Sturgeon’s evidence session to release it.

“It’s beyond dispute that the government hid evidence from their own lawyers and then 'discounted' their advice, as Roddy Dunlop QC put it.

“These new documents show Nicola Sturgeon thought she was a better lawyer than Queen’s Counsel. She was emphatically wrong and it cost taxpayers more than £500,000.

“The government was advised to concede a month before they did. Then they ran up an even bigger bill for weeks after they had been told the case was unstatable, the minimum requirement to proceed.

"Their case was doomed from the start but they hid the evidence from their own lawyers, to the embarrassment and utter dismay of Roddy Dunlop QC.

“The fact there are missing minutes from the meeting that Nicola Sturgeon herself attended confirms this is a cover up. Crucial evidence has been hidden.

“The SNP thought Nicola Sturgeon had been exonerated by an evidence session where she failed to answer questions more than 100 times.

“After the revelations of these latest documents, the First Minister’s position is more unstable than ever. These documents are a crushing blow to Nicola Sturgeon’s chances in the Vote of No Confidence.

“We will set out soon how we plan to proceed, considering that John Swinney’s statements this week have been factually inaccurate and he has seemingly still not released all the legal advice, against the will of the Scottish Parliament.”

Labour MSP Jackie Baillie said: “What the newly-released documents confirm is that the Scottish Government refused conceding the judicial review for as long as feasibly possible and that the astonishing failures of the investigation directly led to the women involved being cruelly let down.

“The documents tell of ‘entirely avoidable’ errors and mention that officials and lawyers were put in ‘extremely difficult’ professional positions due to the failings of the government.

“The Scottish Government should be ashamed of the catastrophic errors it made in this case; errors that failed the taxpayer and most importantly the women involved.

“It is high time that those responsible for this fiasco take ownership of their failings and do the decent thing.”