Scottish First Minister Nicola Sturgeon is facing calls from Opposition MSPs to resign after her Government published legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond.
Deputy First Minister John Swinney agreed to hand over legal advice under threat of a no-confidence vote, and admitted ‘reservations were raised’ by lawyers about the way allegations about Mr Salmond were investigated.
The Scottish Government launched an investigation into allegations of sexual harassment by the former First Minister, but it was found to be unlawful, unfair and ‘tainted by apparent bias’ because of prior contact between the investigating officer and two of the women who complained.
Redacted legal advice published by Mr Swinney tonight showed that SNP ministers were warned they had ‘a very real problem’ defending their legal battle with Mr Salmond more than two months before it finally collapsed.
Advice given to the Scottish Government on October 31, 2018 said there was ‘an extremely concerning’ issue that could gut their entire case – and that the ‘least worst option’ would be to concede the petition.
They wrote: ‘We understand how unpalatable that advice will be… 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.’
MailOnline has gone through each document published by the Scottish Government to help you make sense of the political scandal which is rocking the nation.
Nicola Sturgeon is facing calls to resign after her Government published legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond
Deputy First Minister John Swinney agreed to hand over legal advice under threat of a no-confidence vote, and admitted ‘reservations were raised’ by lawyers about the way allegations about Mr Salmond were investigated
SEPTEMBER 27, 2018: ‘RISK IS THAT WITNESS STATEMENTS AND INITIAL REPORT BY INVESTIGATING OFFICER WERE NOT SHARED WITH SALMOND’
In his letter published to Linda Fabiani, MSP chair of the Committee on the Scottish Government Handling of Harassment Complaints, Mr Swinney said legal advice from September 27, 2018 from senior and junior Counsel ‘sets out an assessment of the merits of the petition brought by Mr Salmond and the Government’s prospects of defending the proceedings at that point’.
In a 13-page document to the SNP administration, the Government’s lawyers were asked for their ‘views on the merits of the petition [brought by Mr Salmond] and the prospects of successfully resisting the judicial review proceedings that have been raised’.
The assessment explains that some of the grounds of challenge concern the validity and fairness of the Procedure for handling complaints against ministers and former ministers that was put in place in early 2018, while others concern the way in which the Procedure was applied to Mr Salmond.
In a 13-page document to the SNP administration, the Government’s lawyers were asked for their ‘views on the merits of the petition [brought by Mr Salmond] and the prospects of successfully resisting the judicial review proceedings that have been raised’
The lawyers say that ‘several grounds of challenge are in our view ‘time barred’, arguing that ‘complaints about the validity and fairness of the Procedure itself… should have been brought within 3 months of 7 March 2018, being the date on which the petitioner first became aware of the complaints and the investigation’.
Though they say they believe that ‘the majority of the grounds of challenge are weak and should be capable of being resisted successfully’, they crucially concede: ‘We think that there is a real risk that the Court may be persuaded by the petitioner’s case in respect of the ground of challenge based on ‘procedural unfairness”.
They conclude: ‘We consider that the areas of greatest risk are in relation to the fact that witness statements and the initial report prepared by the investigating officer were not shared with the petitioner’.
In his letter to the Committee, Mr Swinney spun this by saying that the advice ‘confirms that the majority of the grounds of challenge raised by Mr Salmond were assessed at that time as ‘weak’ and were considered capable of being resisted successfully’.
He added: ‘The document confirms that the Scottish Government was justified in defending the judicial review brought by Mr Salmond.’
OCTOBER 30-31, 2018: ‘IT MAKES LITTLE SENSE TO CONTINUE TO DEFEND THE INDEFENSIBLE’
Writing to the Committee, Mr Swinney said legal advice to the Scottish Government between October 30-31, 2018 demonstrated ‘the development of Counsel’s concerns around the issue of prior contact between the Investigating Officer and the two [Salmond sexual harassment] complainers and whether this could be reconciled with the text of paragraph 10 of the Scottish Government’s Harassment Procedure’.
After Mr Salmond’s lawyers asked for information from the Scottish Government ‘when, by what means and in what terms the complainers first initiated their complaints’, lawyers advising the Scottish Government raised ‘a discussion between the IO [Investigating Officer] and Complainer B’.
Senior Counsel for the Scottish Government Roddy Dunlop QC of Axiom Associates then raised the prospect of conceding the point on October 31, describing the issue as ‘extremely concerning’.
He warned: ‘The concern that arises is that the answer to the question ‘when, by what means and in what terms the complainers first initiated their complaints’ is that Complainer B, as I understand the position, first made her complaint to Judith McKinnon, Deputy Director of the People Directorate, in December 2017.
Senior Counsel for the Scottish Government Roddy Dunlop QC of Axiom Associates then raised the prospect of conceding the point on October 31, describing the issue as ‘concerning’
Nicola Sturgeon (left) has denied breaking the ministerial code and said she will give her full rebuttal tomorrow. The Conservative dossier (right) highlights dozens of instances when Ms Sturgeon appears to have broken the ministerial code
‘That is of concern because it was, of course, Ms McKinnon that was subsequently appointed as the Investigating Officer under the Procedure which is presently under challenge. […] I am told that it was thought that this did not present a problem to Ms McKinnon’s appointment, as she had no prior involvement with the events giving rise to the complaint.
‘I regret that I do not read the procedure in that way. […] As presently advised I consider that this presents a very real problem indeed. The Petition is resisted on the basis that a fair Procedure was instituted and then followed.
‘If I am correct… then the Procedure was not followed: rather, an express embargo was ignored in a way which may well vitiate the entire proceedings.’
He went on: ‘A swift decision is going to have to be taken thereafter as to whether (a) the issue is disclosed and any argument based thereon resisted, or (b) the issue is disclosed and the Petition is then conceded thereof.
‘I can well understand the angst that even suggesting (b) will provoke, but if the proceedings are vitiated then it makes little sense to continue to defend the indefensible.’
DECEMBER 6, 2018: ‘THE LEAST WORST OPTION WOULD BE TO CONCEDE THE PETITION’
A letter written to the Lord Advocate on December 6, 2018 stated that: ‘Counsel are of the view that the ‘least worst’ option would be to concede the Petition. They understand how unpalatable that advice will be, and they do not tender it lightly’.
Advice to the Scottish Government by Roddy Dunlop QC and Solicitor Advocate Christine O’Neill warned of ‘substantial further development of the pleadings, accompanied by disclosure of a volume of information about, among other things, the discussions that took place Complainers A and B prior to them making formal complaints’.
They argued that after Mr Salmond’s lawyers introduced new grounds of challenge based on the Investigating Officer’s prior contact with the complainers, ‘with regret, we are now jointly of the view that those grounds are more likely than not to succeed’.
‘At the outset, we recognise the dismay that this advice will cause,’ they wrote. ‘However, we feel it necessary to tender this advice, and the reasons for it, given the views which we have, independently at first and now of consensus, taken in this regard’.
According to Mr Swinney: ‘As the case progressed during November and early December, this issue was identified as the greatest area of risk for the Government’s prospects in the judicial review.’
DECEMBER 11, 2018: LORD ADVOCATE – ‘THERE ARE GOOD POLICY REASONS TO DEFEND THE CASE’
The Deputy First Minister published documents showing that advice from December 6 was discussed in consultation with the Law Officers on December 11.
It states that in a meeting with the Lord Advocate (LA), the top Government lawyer was ‘very clear that [there was] no question or need to drop the case’ and that ‘even if prospects are not certain it is important that our case is heard’.
Senior Counsel Roddy Dunlop QC is said to have ‘made clear that his note was not intended to convey that he didn’t think we have a stateable case… They tested most of the arguments including the appointment of the IO [Investigating Officer] and concluded that we have credible arguments to make’.
It went on: ‘The argument on the appointment of the IO will turn on the extent to which we can persuade the court that there is an credible alternative to the objective reading test of para 10 of the procedure which is that what we had in mind was that the IO should not have had any prior involvement in the ‘matters under investigation’ – i.e. the events being complained about.’
The document also reveals that ‘Counsel followed up the question of what Perm Sec [the Permanent Secretary] knew about the approaches from staff by late November’.
‘While we are clear that there isn’t a procedural bar to her knowing the detail at any point they are constructing an argument to the effect that early exposure to the detail resulted in her being predisposed to find against [the] FFM [former First Minister]’, the emails state. ‘The paper work doesn’t shed much light on that.’
Mr Swinney in his letter said that the minutes of December 11 showed ‘that there remained good public policy reasons for continuing to defend the case and benefits in securing the clarity of a judicial finding from the Court’.
DECEMBER 19, 2018: EVIDENCE OF THE INVESTIGATING OFFICER’S PRIOR CONTACT WITH THE COMPLAINANTS ‘MAKES A DEFENCE OF APPOINTING THE IO UNSTATEABLE’
An extraordinary document presented to the Scottish Government by its lawyers showed that SNP ministers were warned that ‘maintaining a defence of the appointment of the IO may be unstateable’.
That morning, at the start of the first part of the Commission, the Government’s lawyers said that they ‘experienced extreme professional embarrassment as a result of assurances which we have given, both to our opponents and to the court, which assurances have been given on instructions, turning out to be false as a result of the revelation of further documents, highly relevant yet undisclosed’.
New documents not handed to the Government’s lawyers showed that the Investigating Officer had had contact with both complainants.
The first document was a letter dated January 17, 2018 which stated: ‘We met on 16 January 2018 to discuss your experience about the alleged misconduct of a former minister. Following this meeting you submitted a formal written complaint… I have been designated at the IO… The purpose of this letter is to invite you to a meeting to discuss your complaint in more detail’.
A document presented to the Government by its lawyers showed that SNP ministers were warned ‘maintaining a defence of the appointment of the IO may be unstateable’
Legal advice warns: ‘This letter suggests that there must have been other communications with Ms A in advance of the meeting of 16 January’.
The second document referred to an email thread which showed that there ‘must have been further contact undocumented in which the IO agreed to meet [complainant] Ms B. It is unclear whether this preceded or post dated the making of the complaint’.
The lawyers told the Scottish Government: ‘The complaint had only just been made. No one had appointed an IO for this complaint. The IO has effectively appointed herself in that regard.
‘It seems inevitable, unless very prompt action indeed had been taken, [Redacted] see Ms B [Redacted] before the complaint was actually made, and accordingly before the IO could have had any legitimate interest in speaking to Ms B’.
The lawyers then warned: ‘As to the late nature of the revelation, this is unexplained, and frankly inexplicable. Given the nature of the searches described by as having been undertaken, we regret that we simply cannot understand why these documents have been made available only now.
‘All of this gives rise to two concerns. First, we are now in a position where we think that maintaining a defence of the appointment of the IO may be unstateable.
‘Given the timescales we are reluctant to take a final view on this, but there is a real risk that we so conclude. Second, we are each in a position which is, so far as dealings with the other side and the court are concerned, close to untenable’.
According to Mr Swinney: ‘Counsel’s advice of 19 December following the Commissioner hearing that day… reflect[ed] the pressurised atmosphere of the process of identifying and handing over documents.
‘As has been acknowledged in evidence to the Committee, the Scottish Government’s handling of that process was flawed and this is regrettable. This, along with the subsequent Commission hearing on 21 December, was the moment at which the Scottish Government’s case became no longer stateable.’
DECEMBER 29, 2018: LAWYERS OFFICIALLY ADVISE SNP MINISTERS TO CONCEDE SALMOND’S PETITION AFTER ‘WATERSHED’ HEARING
Legal counsel advised the Scottish Government to conceded Mr Salmond’s petition against its handling of its probe into sexual harassment allegations.
They said: ‘As you are aware, Counsel has offered advice on a number of occasions in relation to the prospects of the Scottish Government’s (SG’s) arguments prevailing in court. This advice has principally turned on Counsel’s views on the appointment and actions of the Investigating Officer.
‘The key point to note is the ‘watershed moment’ of last Friday (21st December 2018), at which point the SG’s case became, in Counsel’s view, unstateable, given what emerged that day about the degree and nature of the contact between the IO and the prospective complainers prior to their formal complaints having been made.
‘This information was contained in documents which were identified and produced for the Commission and Diligence Hearing last week, and had not been elicited by previous document searches.
Legal counsel advised the Scottish Government to conceded Mr Salmond’s petition against its handling of its probe into sexual harassment allegations
‘While there is no reason to believe that the IO was motivated by anything other than her desire to fulfil her role properly, we recognise that her actions give rise to a perception that there was an unfairness in the operation of the procedure in this case.’
They also note that: ‘The Lord Advocate and the Director of Legal Services share the view of Counsel about the likely prospects of success in defending the decision at Judical Review and the consequent advisability of conceding the petition at the earliest possibly opportunity.’
The lawyers conclude: ‘Having reviewed the material contained in this note, you may conclude that the Scottish Government is in a position where the only sensible and defensible action is to concede the petition and to plan for managing the attendant reputation and legal risks. The risks associated with proceeding to defend the Judicial Review could appear to be greater.’
According to Mr Swinney: ‘This was a shared view of both internal and external legal advisers. The case was reviewed and conceded quickly after this, taking account of further internal legal advice on the terms of the concession, which we are also sharing.’
DECEMBER 31, 2018: LORD ADVOCATE RECOMMENDS ‘CAREFUL’ CONCESSION OF SALMOND’S PETITION
The Lord Advocate told SNP ministers that ‘the concession should be narrowly framed to reflect accurately and carefully the legal basis upon which Ministers are conceding the petition; and the basis of the concession should be explained as fully as it can be’.
‘It may be unlikely that it will be possible to avoid the phrase ‘apparent bias’ being used at all, in all communications (including with the court),’ the Lord Advocate went on.
‘However, the use of that phrase should, in my view, be minimised, and should always be coupled with an appropriate explanation, intelligible to a lay person, of what that means – ie that the process must be seen to be impartial as well as actually impartial – and what it does not mean (ie that the process was actually tainted by bias).’
Writing today, the Deputy First Minister insisted: ‘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. There were good public policy reasons for continuing to defend the case and to seek a determination from the Court.
‘Once it became clear that the Scottish Government no longer had a stateable case after the Commission hearings in late December 2018, the Government quickly reviewed the position and conceded the case.
‘The view that the Government no longer had a stateable case was agreed by both internal and external advisers.’
The dossier’s allegations about Ms Sturgeon include repeatedly misleading the Scottish Parliament about when she first knew of the allegations against Mr Salmond, delaying settling the judicial review despite legal advice, and meeting Mr Salmond on government business without any officials present or records being taken
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