Scottish government to release legal advice on Salmond court action

Move comes after it emerged deputy first minister, John Swinney, faced cross-party censure

John Swinney, Scotland’s deputy first minister, has agreed to release his government’s legal advice on Alex Salmond’s court action after facing cross-party censure in Holyrood.

Swinney told the Holyrood committee investigating the Salmond controversy on Monday night it would get the advice on Tuesday afternoon, after it emerged all four opposition parties would back a Conservative no-confidence motion in him tabled for later on Tuesday.

It remains unclear whether the advice will be released publicly once it has been given to the committee. Swinney told MSPs he had agreed, because of the “exceptional circumstances”, he would release the papers “to the committee and for publication” but the Tories accused him of prevarication.

The Tories said the advice should be published for everyone to see, and would not lift the threat of a no-confidence vote until they had seen what Swinney did and how extensive the disclosures were.

“The deputy first minister is not in the clear yet,” said Douglas Ross, the Scottish Tory leader. “He must go further and fully publish the legal advice or we will not hesitate to force him out.”

The legal advice, written in October 2018 by one of Scotland’s most senior lawyers, Roddy Dunlop QC, is said to have warned the government it was likely to lose Salmond’s legal challenge over its flawed internal inquiry into sexual harassment complaints against him.

It had emerged the civil servant who led that inquiry had spoken to both women before they made their complaints official, briefing them on the new anti-harassment policy before it was complete and approved.

That apparent conflict of interest led to Salmond winning his court challenge in early January 2019, when the government conceded its inquiry was flawed, unlawful and had the appearance of bias.

Dunlop, now dean of the Faculty of Advocates, the ruling body for advocates, Scotland’s equivalent to a barrister, and his junior, are said to have threatened resignation later in 2018 because Leslie Evans, the government’s permanent secretary, was refusing to concede.

After rejecting two previous demands by Holyrood to do so, Swinney said he would release that advice to the committee in part to counter inaccurate allegations about what it said.

“The very integrity of the legal system is being questioned,” he said. “Serious allegations have been made. This material allows people to confirm that these allegations are false.”

With Nicola Sturgeon due to give evidence on oath to the committee on Wednesday morning, the relevance of that advice intensified sharply when Salmond testified last week that Sturgeon was involved in discussions about what to do with it.

Salmond told the committee: “Everything about that legal advice,even how it has been described in terms, suggests that, on the balance of probabilities, it indicated that the government was about to lose.

“ the legal advice says that and the case was continued in the knowledge of the first minister against that legal advice, that would be a breach of the ministerial code. If we could just see the document, we would all be better informed.”

Salmond suggested Sturgeon could be guilty of a breach of the ministerial code if that advice was ignored, because it increased the legal costs and delay. Salmond was eventually awarded £512,000 in legal costs, a substantial figure calculated partly to reflect the fact the government had unnecessarily prolonged the court action.

The committee is again questioning the lord advocate, James Wolffe QC, on Tuesday morning, along with crown agent David Harvie.

Wolffe began his evidence by robustly rejecting cover-up claims, including assertions from Salmond last week, allegations from some opposition MSPs and on social media, or that the Crown Office had been politically influenced or biased in its decisions.

Salmond is furious the Crown Office refuses to release evidence he says proves collusion by senior figures in the Scottish National party to get him prosecuted, and also that it asked Holyrood to heavily edit one of his submissions.

Wolffe said all Crown Office decisions were based on the law, and independent of any outside influence. He said David Harvie, the crown agent who is the Crown Office’s head of prosecutions, was an “exceptional public servant” and a man of utmost integrity.

“Any suggestion from any quarter that the Crown’s decision making has at any time been influenced by political considerations or improper motivations would be wholly without foundation. Insinuations and assertions to the contrary are baseless,” he said.

source: Severin Carrell

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