Scotland's chief law officer ordered search of top civil servant's office for Salmond complaint documents

·5-min read

Scotland's chief law officer ordered a search of the office of its top civil servant to find documents on complaints against Alex Salmond.

Sky News has seen records of a legal hearing in which counsel, acting for the government, said the Lord Advocate instructed a complete search of the "entire electronic repository of the permanent secretary's office" to retrieve material.

Opposition parties say the Lord Advocate's intervention "beggars belief".

The Scottish government has responded by saying the permanent secretary, Leslie Evans, was not targeted specifically and that "any accusation that she withheld information is categorically untrue".

The documents sought related to the 2018 legal challenge by Scotland's former first minister of a government investigation into harassment complaints against him.

The government eventually conceded the so-called judicial review after its investigation was ruled "unlawful" and "tainted by apparent bias" by the Court of Session.

The Scottish government's recently-released legal advice shows that its external legal counsel had warned of the possibility of failure, in increasingly strong terms, from more than two months before the government conceded.

The government insists it "moved quickly" to concede the case following counsel's advice that it had become "unstateable" (unsuitable even to be heard in court) on 21 December 2018.

Counsel advising the government were furious upon learning officials had failed to disclose key evidence about prior contact between the investigating officer and the two complainants, information that eventually prompted the government to admit defeat.

Mention of an intervention by the Lord Advocate, James Wolffe QC, is contained in the records of a Commission and Diligence hearing, in which opposing legal counsel for the Scottish government and Alex Salmond discussed the release of relevant documents.

The search of the office of the government's permanent secretary, Leslie Evans, was revealed by Roddy Dunlop QC, senior counsel for the government.

Addressing a Commission and Diligence hearing on 21 December 2018, he apologised for the Scottish Government's document disclosure, declaring himself "horrified".

Mr Dunlop said: "It is entirely regrettable and I can only apologise to the commissioner and ultimately to the court for the piecemeal nature of what is happening and, frankly, I am personally horrified of (sic) the way this is unfolding but I can only make available what is available."

Indicating there had been an intervention by the chief law officer, he said: "The result of that has been that the Lord Advocate has intervened and instructed that a complete search be undertaken using a variety of search terms.

"I can identify those if need be. Seems to me to be sensible search terms of the entire electronic repository of the permanent secretary's office, that is a substantial amount of documentation."

"And even narrowing using search terms and using date ranges, the search has not yet been completed and I am presently unable to say when that search will be completed.

"All I can say is the Lord Advocate himself has stressed the urgency of being able to say both to you, madam commissioner and to Lord Pentland (presiding judge in judicial review) that the search has been exhaustive and exhausted and in that regard I can only give that assurance that that is ongoing."

Around the same time, junior and senior counsel had written a blistering rebuke to their government clients regarding document disclosure.

A joint note on 19 December 2018 from Roddy Dunlop QC and Christine O'Neill, solicitor advocate, read: "With regret, our dismay at this case deepens yet further.

"We will not rehearse the regrettable way in which document disclosure has unfolded.

"Suffice to say that we have each 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."

Opponents of the SNP government have echoed Alex Salmond's claims that Nicola Sturgeon breached the ministerial code by allowing her government to continue with its challenge against Mr Salmond's action, at a cost of more than £600,000 to the taxpayer, despite legal advice that it was doomed to fail.

Labour MSP Jackie Baillie, who sits on the Scottish parliament's harassment committee, which is investigating the government's mishandling of complaints against Mr Salmond, told Sky News: "This evidence demonstrates the extraordinary incompetence displayed by the Scottish Government in this most serious matter.

"That the Lord Advocate had to intervene to search the Permanent Secretary's emails beggars belief.

"It's becoming increasingly clear that failures around the permanent secretary's office directly led to the women involved being cruelly let down and the taxpayer being landed with a bill of over half a million pounds."

A Scottish Government spokesperson said that, following the first day of the Commission and Diligence hearing (19 December 2018), instructions on further document searches were circulated within the Scottish Government, but that they went to all relevant staff and were not targeted specifically at the permanent secretary's office.

A spokesperson said: "Any accusation that the permanent secretary has withheld information at any stage in this process is categorically untrue.

"It is not unusual for further information to be sought during the course of a case.

"The permanent secretary sought and followed legal advice at all times throughout the judicial review, as she has explained in detail in both written and oral evidence to the Committee on several occasions.

"The Scottish Government has acknowledged that the process to identify and pass on relevant documents and information for the judicial review was not sufficiently robust."