Legal advice to concede in the court battle with Alex Salmond was “discounted” by senior figures in the Scottish government, including the first minister, according to newly released documents which also reveal a stark warning that the former first minister had his successor, Nicola Sturgeon, “in the crosshairs”.
The latest documents to be released to the Holyrood inquiry into the handling of sexual harassment complaints against Salmond include a joint note from external counsel on 17 December 2018, several weeks before the government finally conceded in the judicial review of the process brought by Salmond.
In it, barrister Roddy Dunlop QC and solicitor advocate Christine O’Neill state they are “unable to see that the benefits in proceeding come close to meeting the potential detriments in doing so. 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.”
The note also described Salmond’s approach to the case as “scorched earth”, adding: “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 [Leslie Evans] and the first minister.”
Despite two votes in parliament, some of the legal advice given to the Scottish government about Salmond’s judicial review, which it lost at a cost of more than £600,000 to taxpayers, was only released to the committee on Tuesday evening, the day before Sturgeon appeared before it, after the Scottish Conservatives threatened a no-confidence vote in the deputy first minister, John Swinney.
The papers released on Tuesday contained the revelation that Dunlop, one of Scotland’s leading lawyers, had been furious that government officials had failed to disclose critical evidence about the prior contact of the investigating officer with the two complainants.
Sturgeon said in her evidence on Wednesday there was “no question” that the case should be dropped until this new evidence emerged, and that the government was acting in accordance with the views of the law officers at the time.
Under continuing pressure from opposition parties, Swinney published a further set of documents on Thursday and Friday afternoons.
Scottish Conservative leader Douglas Ross said the latest revelations were “devastating”, adding: “The first minister’s position is more unstable than ever”. He said the party would set out soon how they plan to proceed with two outstanding votes of no confidence: the first against Swinney and the second against Sturgeon.
Scottish Labour deputy leader and committee member Jackie Baillie said the documents told 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.”
Releasing the documents, Swinney insisted that the documents “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”.
“These documents demonstrate that the case became unstateable in late December and the Scottish Government conceded quickly afterwards in early January”.
An earlier note from 6-7 December 2018 reveals that Sturgeon and Leslie Evans questioned Dunlop’s advice that conceding was the “least worst option”, and another note a few days later on 10 December shows that the external counsel said they had considered “very seriously whether we were bound to withdraw from acting”. Sturgeon was asked on Wednesday about Salmond’s claim that the Scottish government conceded the case only when counsel threatened to resign, but replied, “That is not my understanding of the position”.