SNP government lawyers had 'reservations' about continuing Alex Salmond court fight

Simon Johnson
·5-min read
Alex Salmond gave evidence to the Holyrood inquiry last week - PA
Alex Salmond gave evidence to the Holyrood inquiry last week - PA

John Swinney has admitted the Scottish Government's lawyers had “reservations” about continuing its costly legal fight with Alex Salmond months before its case collapsed.

The Deputy First Minister confirmed the SNP administration was aware of what would prove a fatal flaw in its case as early as October 2018, yet persisted until the following January when it conceded.

He insisted there were “good public policy grounds” for continuing the defence action, but did not say there were justifiable legal grounds for doing so.

His admission, in a letter to a Holyrood inquiry into the debacle, came after Mr Salmond claimed the Scottish Government prolonged its defence longer than was legally justifiable - a potential breach of the ministerial code.

Mr Swinney said the government aimed to release the advice to the inquiry on Tuesday afternoon, ahead of Nicola Sturgeon's appearance on Wednesday morning.

He caved in to opposition demands for the advice to be published on Monday evening after a majority of MSPs swung behind a Tory motion of no confidence, which would have forced his resignation if passed.

In a humiliating about-turn, he promised to publish the "key" advice. However, the Scottish Tories warned they would press ahead with the vote of no confidence if he failed to hand over everything the inquiry demanded.

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The inquiry has tried for months to get the Government’s legal advice to see if this is the case, but Mr Swinney refused, despite two votes in parliament for disclosure, citing legal privilege.

Lord Advocate James Wolffe told the committee that his approval to release the advice was only sought on Monday, when the vote of no confidence was threatened.

In a marathon six-hour evidence session last Friday, Mr Salmond said that ministers only conceded the case after the external counsel they appointed threatened to quit.

He won the judicial review in 2019 when Scotland’s highest civil court found that the way the Scottish Government investigated sexual misconduct allegations against him was unlawful.

The SNP administration he once led paid him £512,250 of taxpayers' money to cover his legal costs after the judge Lord Pentland ruled the inquiry was "procedurally unfair" and "tainted with apparent bias".

The case was abandoned on the eve of a Court of Session hearing after the government admitted it had breached its own guidelines by appointing an investigating officer who had “prior involvement” with two civil servants who had made complaints.

The committee’s inquiry into the debacle was kickstarted after when Mr Salmond was acquitted of sexual assault charges at the High Court last year.

John Swinney has pledged to hand over legal advice - Reuters
John Swinney has pledged to hand over legal advice - Reuters

Douglas Ross, the Scottish Tory leader, said: ""The legal advice that John Swinney claimed would exonerate the government actually confirms what everyone suspected.

"The government knew of the fatal flaw in their case months before conceding but went on to waste £500,000 of taxpayers' money anyway.

"Recklessly continuing with the judicial review when it was doomed would clearly be a breach of the ministerial code. The public deserve to know exactly what mistakes were made."

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The Scottish Tories released a dossier detailing 14 potential resignation matters for Ms Sturgeon and her inner circle in the affair, up to 38 breaches of the code by the First Minister and more than a dozen times the Scottish Parliament could have been misled.

Ms Sturgeon has denied breaching the code but Mr Ross said the dossier "shows all the evidence of SNP cover ups, dreadful mistakes and terrible lapses of judgement." He added: Sleaze and secrecy is running rampant throughout the ruling party of government."

In his letter, Mr Swinney did not say whether all the advice would be handed over and restated his concern "about the potential risk of creating a new precedent that would impact on the ability of future administrations to receive candid and confidential legal advice."

“However, over recent days there has been public debate about the ability of the Parliament to hold the Government to account," he said.

“Accusations have also been raised with the Committee, without evidence, about the reasons why the Government continued to defend the judicial review until it was conceded on a single ground in January 2019.

“I am concerned that this debate and the accusations, if not responded to, could impact negatively on public confidence in the Parliament, Government and even our justice institutions."

He said he concluded "the balance of public interest" lies in releasing the legal advice and confirmed the disclosure would include the advice drawn up by external counsel.

Mr Swinney said: “The documents confirm that, whilst reservations were raised about the judicial review following the identification of the issue of prior contact with the complainers in late October, there were good public policy arguments and reasonable grounds for the Government to continue to defend the judicial review and to seek a determination from the Court on the matters raised, until the events of late December 2018."