Newly published legal advice appears to contradict Salmond claim

Lucinda Cameron
·4 min read

Newly released Scottish Government legal advice appears to contradict Alex Salmond’s claim of a plot to delay a civil case in the hope it would be overtaken by criminal proceedings he faced.

But the Scottish Conservatives said the four documents released on Thursday fall far short of what the Scottish Parliament and Salmond inquiry demanded, and called on the Scottish Government to “end the secrecy” and release all the advice.

The documents relate to the botched investigation into allegations of sexual harassment by the former first minister.

A successful judicial review by Mr Salmond resulted in the investigation being ruled unlawful and “tainted by apparent bias”, with a £512,250 payout being awarded to him for legal fees in 2019.

Mr Salmond was acquitted of 13 charges following a criminal trial last year.

Scottish Conservative Party leader
Scottish Conservative leader Douglas Ross called on the Scottish Government to release all the legal advice (Andrew Milligan/PA)

Giving evidence to a Holyrood inquiry into the government’s handling of complaints last Friday, Mr Salmond claimed the Scottish Government hoped a criminal trial would “ride to the rescue” and prevent its unlawful investigation of him suffering a “cataclysmic” civil court defeat.

Explaining his belief that a looming criminal trial was the reason the government did not admit defeat in the case sooner, Mr Salmond said: “Conceding in October [2018] would be embarrassing, it would be difficult, but it wouldn’t be as cataclysmic as an open court case in January [2019].

Watch: What has happened so far in the Alex Salmond inquiry?

“What other motivation could there possibly have been than the belief that something might happen and intervene which meant that the judicial review never came to court?”

He added: “If the criminal case had been advanced, then the civil case wouldn’t have gone ahead pending the outcome of the criminal case.

“Many people seemed to invest a great deal of hope that the criminal case would ride to the rescue, like the cavalry over the hill, and the civil case would never be heard.”

In a document dated September 4 2018, Roddy Dunlop QC and Solicitor Advocate Christine O’Neill, counsel for the Scottish Government, said they could see strength in the argument that the criminal investigation may “make the entire petition pointless”.

Coronavirus – Tue Dec 8, 2020
The Scottish Tories have submitted no confidence votes in Nicola Sturgeon and John Swinney (Fraser Bremner/Scottish Daily Mail/PA)

He wrote: “If there is a criminal conviction then surely this case will not proceed; and if there is a trial and an acquittal then the Ministers would be faced with a very different situation than that which presently obtains.”

Deputy First Minister John Swinney released a first batch of legal advice on Tuesday under threat of a no-confidence vote and further documents were published on Thursday evening.

However Mr Swinney said the newly released documents make clear that delaying the case – known as sisting – was only considered as an option in order to minimise the impact of the case on the ongoing police investigation.

In a letter dated September 17 2018, the Lord Advocate said that the other option would be reporting restrictions and that this would be preferable.

He said: “I am satisfied that, if reporting restrictions are competent, these would adequately protect the public interest in any future criminal proceedings.

“On that basis, that would clearly be the preferable and appropriate route, since it would enable the issues raised by the petition to be addressed whilst protecting any future criminal process.”

Watch: Douglas Ross - Nicola Sturgeon must go after Holyrood inquiry

Mr Swinney said: “This puts beyond any doubt that there was any attempt to delay the judicial review so that it would be overtaken by criminal proceedings.”

The Scottish Conservatives have lodged votes of no confidence in Mr Swinney and First Minister Nicola Sturgeon.

Scottish Tory leader Douglas Ross said: “The limited documents that John Swinney has just published falls far short of the demands of the Scottish Parliament and of the Salmond inquiry.

“There is still nothing for the whole month of November.

“This is not good enough. End the secrecy and release all the legal advice.”

A statement issued on behalf of Mr Salmond said: “The documents released tonight confirm that sisting (postponing) the Judicial Review was indeed under active consideration by the Scottish Government in September 2018.

“John Swinney must now be the only person in Scotland who believes that the piecemeal release of these extraordinary legal documents have done anything other than demolish the Government’s pretence that they were not warned months in advance that they were on course to lose the judicial review.

“The more they release the more threadbare the government’s position becomes.”

He said that they look forward to “further revelations” in the next instalment.