Scottish Government publishes Salmond legal advice

Legal advice given to the Scottish Government in early December 2018 regarding the judicial review brought by Alex Salmond recommended the “least worst option” was to concede the case.

Deputy First Minister John Swinney agreed to publish the advice after a threat of a vote of no confidence was brough by the Scottish Tories.

The Scottish Parliament twice voted in November for the government to publish the advice, but ministers had until this week resisted, citing legal privilege.

Having now waived that privilege, Swinney said the documents proved the government “did not ignore legal advice”.

In a cover letter to the parliamentary committee investigating the botched handling of harassment complaints, Swinney said: “The documents published today demonstrate that the Scottish Government did not ignore legal advice in continuing to defend the judicial review, contrary to the terms of the Scottish Ministerial Code or the Civil Service Code.

“The documents demonstrate that there was no ‘malicious’ intent against Mr Salmond. The Scottish Government was within its rights to defend a judicial review raised against it by Mr Salmond and to continue to defend it whilst it still had a stateable case.”

The advice from legal counsel changed over time as more information was provided. In September 2018, a joint note by Christine O’Neill and Roddy Dunlop said the grounds Salmond was challenging the government on were “weak”.

However, they also said there was a “real risk” in relation to procedural unfairness.

Then in advice from Dunlop dated 31 October, he said the revelation of Judith McKinnon’s prior contact with complainers was “extremely concerning”.

McKinnon had been chosen as the Investigating Officer (IO) for the harassment complaints despite the government procedures stating the IO must have had “no prior involvement with any aspect of the matter being raised”.

Dunlop said: “I am not suggesting bad faith on the part of anyone, least of all Ms McKinnon. But the fact remains that the procedure indicates – to my mind, at last, that she was not eligible to be appointed as IO. If I am right in that regard then arguably that infects all that followed thereon.”

Then in advice provided to the government on 6 December, a joint note warned Salmond’s case was “more likely than not to succeed”.

It concluded: “Ultimately, our own view is that the ‘least worst’ option would be to concede the petition. We understand how unpalatable that advice will be, and we do not tender it lightly. But we cannot let the respondents sail forth into January’s hearing without the now very real risks of doing so being crystal clear to all concerned.”

The government conceded the case in January 2019.

Meanwhile, in two separate submissions to the harassment committee, advocate Duncan Hamilton and former SNP communications chief Kevin Pringle corroborated Salmond's claim that his former chief of staff, Geoff Aberdein, had been told one of the complainant's names in March 2018.

The Scottish Conservatives have now called for First Minister Nicola Sturgeon – who will appear before the committee on Wednesday morning – to resign.

Leader Douglas Ross said: “The weight of the evidence is overwhelming. Nicola Sturgeon must resign.

“No evidence she can provide tomorrow will counter the claims of numerous witnesses or refute that her government ignored the legal advice for months and lost more than £500,000 of taxpayers’ money in the process.

“We will be submitting a vote of no confidence in the First Minister.”

Scottish Labour deputy leader Jackie Baillie, who is a member of the committee, said: “The Scottish Government’s unlawful handling of harassment complaints appears to be indefensible, and I look forward to having the opportunity to question the First Minister on the failings of her government.”