Alex Salmond inquiry: SNP government must publish legal advice or suspicions of sinister vendetta against him will grow – Murdo Fraser MSP

Today I will be asking the Scottish Parliament to support a call on the SNP government to publish the legal advice they obtained in the Alex Salmond case.

Nicola Sturgeon must agree to publish legal advice given to the government about Alex Salmond's legal challenge over the handling of complaints made against him (Picture: Andy Buchanan/PA Wire)

It is a vital piece of evidence that the Holyrood committee investigating this whole episode requires to see, and I hope that MSPs of all parties will join with me in pressurising the Scottish government to produce it.

It has been well reported that the Salmond inquiry committee, as it has now become commonly known, is deeply frustrated by the lack of cooperation on the part of SNP ministers. Extracting a ten-pound note from the tight grasp of Ebenezer Scrooge would be a simple task in comparison to obtaining necessary documentation from the Scottish government.

Time and again the committee has had to write to ministers to express their dismay at information being withheld or delayed, and the committee convenor, Linda Fabiani, said in September that she was ‘completely frustrated’ by the lack of evidence provided.

The irony is that this comes against the background of constant protestations from the Scottish government that they are cooperating fully with the inquiry. Nicola Sturgeon told Holyrood on October 1 that all information was being provided except where there was a “legal reason” why it could not be. This statement is simply untrue.

Convention can be overridden

There are no legal restrictions on the publication of the Scottish government’s legal advice; the only restrictions that exist are political. If the Scottish government wants to publish its legal advice there is nothing in law preventing it from doing so.

Alex Salmond speaks outside court after winning a judicial review case against the Scottish government's handling of harassment complaints against him (Picture: Jane Barlow/PA)

There is a long-standing convention that legal advice given to ministers is confidential, and that convention exists for good reasons. But we have had many examples in the past where that convention has been overridden.

The Scottish government have themselves published their own legal advice on a number of occasions: in the contaminated blood scandal case, on the Scottish Child Abuse Inquiry, and in relation to the Edinburgh trams inquiry. Failure to do so in relation to the Salmond inquiry is simply a political choice.

Why does this matter? We know that the Scottish government conceded the judicial review pursued by Mr Salmond in relation to its complaints handling process. We also know that the award of expenses made to Mr Salmond – over £500,000 of taxpayers’ money – was at the highest level available in these circumstances; a level of award only made where the defence has been conducted “either unreasonably or incompetently”. So we know that something went very far wrong with the Scottish government’s legal case.

Bad advice?

It is surely a matter of legitimate public interest to understand this catastrophic failure within the Scottish government, and one which cost the taxpayer so dearly. If it is the case that the legal advice obtained by the Scottish government, either from in-house counsel, or externally, said that they had a good case to defend, then lessons need to be learned as to why such poor advice was offered, to ensure no repetition in the future.

The alternative explanation is more sinister and concerning. Mr Salmond’s allies believe that the legal advice obtained by the Scottish Government said that the judicial review case should not be defended, as there was very little chance of success.

If that indeed is what the legal advice said, then a decision was taken at the top of the Scottish government to go and defend the case regardless: a decision which, in the light of what we now know, was both irresponsible and reckless. More worrying still is the accusation that this decision was made on political grounds, and in effect the Scottish government were pursuing a vendetta against the former First Minister and using public funds to do so.

It is impossible for members of the Salmond inquiry committee to reach a view on which of these explanations is the correct one in the absence of the legal advice, and that is why its publication is so vital to the inquiry. It also explains why all members of the committee, across all five political parties represented at Holyrood, have joined together to make the calls for the legal advice to be published.

Ministers must respect parliament’s views

There is another element to this too. The ministerial code, which governs the behaviour of Scottish ministers, makes it clear that they must act lawfully at all times. Alex Salmond has already called on the Independent Adviser on Complaints against the First Minister, James Hamilton, to widen his investigation to look at this specific issue. Publication of the legal advice would be of major assistance to him in investigating this vital matter.

It is hard to avoid the conclusion that, to date, the Scottish government have treated the Salmond inquiry with little more than contempt. In addition to the refusal to release vital documentation, we have now had an astonishing four occasions on which senior civil servants have had to write to the committee subsequent to giving oral evidence, to correct misleading statements which have been given in public session.

The continued refusal of the Scottish government to release its legal advice simply confirms what many believe, and that is that they will do all they can to obfuscate and cover up what really happened here, in a case where the taxpayer has paid dearly for mistakes made at the top.

Should the Scottish Parliament agree today to support my call for publication of the legal advice, I would expect the Scottish government to respect the parliamentary vote and produce the missing documentation as a matter of urgency. To do otherwise would just confirm that this is an SNP government who will stop at nothing to cover their tracks and hide their mistakes from public view.

Murdo Fraser is a Scottish Conservative MSP for Mid Scotland and Fife

A message from the Editor:

Thank you for reading this article. We're more reliant on your support than ever as the shift in consumer habits brought about by coronavirus impacts our advertisers.

If you haven't already, please consider supporting our trusted, fact-checked journalism by taking out a digital subscription.