Legal advice to Holyrood underlined concerns on Salmond case

Legal advice given to the Scottish government, which was published on Friday, graphically underlines concerns voiced by its external counsel about defending its probe into harassment complaints against Alex Salmond — weeks before the case was conceded in court.

The minority Scottish National party government had previously shrugged off votes made by the parliament in Edinburgh demanding that it release the 2018 advice. However, following threats of a motion of no-confidence made against the deputy first minister John Swinney, it has been publishing the advice in batches this week.

The dispute with parliament is part of a far-reaching controversy over the government’s handling of complaints against Salmond, which set him against his successor and former protégé Nicola Sturgeon. Many in the SNP fear the rift could undermine the party’s push for independence.

Under legal challenge from Salmond, the Scottish government accepted in court in January 2019 that its investigation into the complaints by two female civil servants was “procedurally unfair” and “tainted by apparent bias”. At a criminal trial last year, the former first minister was acquitted of all of the 13 sexual offences charges against him.

In advice, given on December 17, 2018, and published on Friday, external lawyers for the government made clear that late provision to them of evidence damaging to its case had made them consider “very seriously” whether they could continue to act for it.

Advocates Roddy Dunlop QC and Christine O’Neill wrote that they were “firmly of the view” that at least one of the challenges to the investigation in Salmond’s “scorched earth” assault would be successful.

Sturgeon has said the government wanted a court ruling that would make clear the legal standing of all parts of the investigation process. But Salmond has suggested officials wanted to draw out a doomed defence in the hope that it would be superseded by the criminal case being brought against him.

In a statement earlier this week, a spokesperson for Salmond said that Swinney — who has been handling evidence requests for the government — needed to answer why it “kept running down the clock and running up the bills” long after being warned “in the starkest terms” that it would lose.

Swinney insisted on Friday that the advice published so far “utterly disprove the conspiracy theory that the Scottish government delayed the concession of the judicial review or ignored advice from counsel, or that there was a plot against Mr Salmond”.

Analysts said Sturgeon appeared to have come through an eight-hour appearance on Wednesday before a parliament inquiry into the handling of the complaints relatively unscathed. The first minister still faces a separate investigation into her conduct by her independent adviser on the ministerial code, James Hamilton.

The Scottish Conservatives plan to bring a vote of no confidence against Sturgeon next week. But former Scottish Labour first minister Henry McLeish told the BBC on Friday that he believed Sturgeon had “rebutted most of the challenges, the assertions, the allegations” against her.

“There is no serious path toward the first minister either resigning or suffering with a vote of confidence in the parliament,” McLeish said.