Key sections of legal advice received by ministers about Alex Salmond’s court challenge were hidden from MSPs ahead of Nicola Sturgeon’s witness session, it has emerged.
John Swinney, the Deputy First Minister, finally agreed to release the advice on Tuesday evening, as MSPs prepared to pass a vote of no confidence in him for ignoring repeated demands to publish it.
However, it was alleged that important sections had not appeared, with the Scottish Tories refusing to withdraw their plan for a no confidence vote in the First Minister’s most trusted lieutenant as a result.
Jackie Baillie, the Labour deputy leader, said that in more than two decades sitting on Holyrood committees, she had never felt “so frustrated” as she had been trying to extract documents from the Scottish Government.
Her comments were backed by Linda Fabiani, the SNP convenor of the committee.
Ms Baillie said “missing” information included submissions from Christine O’Neill QC, junior counsel, and records of a meeting attended by Ms Sturgeon and senior legal advisers to discuss the case in November 2018.
She said: “We've waited till the 11th hour for the legal advice, and we get partial legal advice.
“We've been asking for this information for months. We wanted to see the notes where counsel were involved in providing advice to ministers, to the Lord Advocate, to whoever. We haven't got that today. We simply do not have it.”
The information that was provided shows that the Scottish Government pushed ahead with its defence of a legal challenge brought by Mr Salmond to its sexual harassment investigation, despite being warned chances of success were slim.
Roddy Dunlop QC told ministers in October 2018 he was “very concerned indeed” after learning that the investigating officer in charge of the complaints process into Mr Salmond’s alleged sexual misconduct had prior contact with a complainant.
He added: “If the proceedings are vitiated then it makes little sense to continue to defend the indefensible.”
By December 6, both Mr Dunlop and Ms O’Neill, who were acting as the government’s counsel, urged ministers to admit defeat in the judicial review. The case was only collapsed a month later after they both threatened to resign, with Mr Salmond then awarded more than £500,000 in legal costs.
Both also complained that they had faced “extreme professional embarrassment” due to the Scottish Government’s failure to disclose documents.
Mr Swinney said on Wednesday that more documents would be provided, although the delay means Ms Sturgeon escaped scrutiny around them during her witness session.
Ms Sturgeon pledged to would “reflect” on Ms Baillie’s comments but said she “took issue” with her characterisation of the government’s stance.
She said: “I think with the legal advice people can take different views on the decisions we took. But you look at the legal advice in the round and see some of the things that were said about the government's position are just not borne out in fact.
“We have genuinely held views and concerns about the basis on which governments need to be able to take confidential legal advice and incidentally when Alex Salmond was First Minister, he held those views and as strongly as I do now.”