The Scottish government will on Tuesday hand over to the parliament in Edinburgh confidential legal advice on its investigation into Alex Salmond that the former first minister says will show that it wrongly continued to defend the probe in court after being told it was heading for likely defeat.
The agreement to hand over the 2018 legal advice marked a major climbdown for the minority Scottish National party government, which has twice defied votes of the whole parliament on the issue.
The government only changed its mind on Monday after the Scottish Conservatives announced plans to submit a no-confidence motion against deputy first minister John Swinney, who has been handling evidence requests on behalf of the government, on the issue.
“John Swinney only backed down and U-turned to save his own skin,” said Douglas Ross, Scottish Conservative leader. “It’s a pathetic reveal of what motivates the SNP. It’s not about getting to the truth, it’s only about self-preservation.”
The release of the advice will mark a new twist in a crisis for the SNP centred on Salmond’s allegations that his former protégé and successor as first minister Nicola Sturgeon broke the ministerial code and that her closest associates maliciously colluded to drive him from public life.
In 2019, the Scottish government accepted that its investigation the previous year into harassment complaints against him by two civil servants had been “tainted by apparent bias”. At a criminal trial last year, Salmond was acquitted of all of the 13 sexual offences charges against him.
In evidence to a parliamentary committee investigating the government’s handling of harassment complaints against him, Salmond claimed that officials had been told by external counsel in 2018 that his “judicial review” legal challenge to the investigation was likely to win.
“Despite that advice and the cost of hundreds of thousands of pounds of avoidable legal fees, the Scottish government pressed on with a case they expected to lose,” he said.
In a letter to the committee published on Tuesday, Swinney, who is also Scotland’s education secretary, made no mention of the threat of a no-confidence motion against him, which had been backed by Scottish Labour, the Scottish Greens and the Scottish Liberal Democrats.
Instead, Swinney said he was concerned that accusations raised without evidence to the committee might affect confidence in the government and justice institutions and he had decided that in “these exceptional circumstances” the balance of public interest now lay with releasing the advice.
“The documents confirm that, whilst reservations were raised . . . there were good public policy arguments and reasonable grounds for the government to continue to defend the judicial review,” Swinney wrote.
The government said it aimed to hand over the documents on Tuesday afternoon, less than a day before Sturgeon is scheduled to appear before the committee on Wednesday morning.
However, in a press release on Monday, the government said it would release the “key legal advice”, prompting opposition warnings that only full disclosure would be enough.
“It is not for the Scottish government to determine what is key legal advice,” Andy Wightman, an independent member of the Scottish parliament and member of the committee, said in a tweet.
In a nearly six-hour appearance before the committee on Friday, Salmond suggested the government had intentionally drawn out its defence of the judicial review in the hope that it would be “sisted” or be put on hold by the criminal case against him.
Swinney said the government had not seen any need to sist the judicial review. “I have asked officials to review the relevant documentation, but they have not identified any documents which support this allegation,” he wrote.