Insight: The Alex Salmond inquiry and unpicking a tangle of disinformation

The days leading up to Alex Salmond’s appearance before the Committee on the Scottish Government’s Handling of Harassment Complaints were so full of bluff and bluster - of court skirmishes, promises of “bombshell” revelations and unhinged references to Scotland as a Banana Republic - that, when it finally happened, it felt anticlimactic.

Alex Salmond is sworn in before giving evidence to a Scottish Parliament Harassment committee

After all the will-he, won’t-he intrigue and the hints of a “coming storm” from the QAnon fringe of the independence movement, he sat sobre-suited and atypically muted, as he set out the allegations he had foreshadowed outside Edinburgh High Court after his acquittal on all charges almost a year ago.

The most fervent of his supporters are so erratic, it is easy to forget what an accomplished political performer Salmond is. As soon as he starts to speak, though, you remember. Replying to committee members’ questions, he came across as measured and forensic, though less self-reflective than he had been at his trial. Despite being directly asked, he failed to express any remorse for past “inappropriate” behaviour.

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The former First Minister’s performance was pitched firmly at the mainstream, and would perhaps have disappointed those within his camp who were looking forward to him squaring up to his nemesis Nicola Sturgeon. In the end - despite all the pre-hearing hype - he didn’t call for her resignation.

Then First Minister Alex Salmond and then Deputy First Minister Nicola Sturgeon during First Minister's Questions at the Scottish parliament in Edinburgh.

And yet - watching closely - it was not devoid of theatrics. In front of him lay a folder of evidence the committee has been barred from seeing, displayed as a taunt, a provocation. Then, with minutes to go,he lobbed a grenade: the suggestion that, if the committee wanted to see that evidence, all they had to do was to issue a Section 23 order compelling his solicitors to hand over the information to its members.

For the most part, Salmond’s trademark bombast was swapped for understatement, as if he was actively distancing himself from those who rabble-rouse on his behalf. *HE* wouldn’t use the word “conspiracy,” he insisted - though his ally Kenny MacAskill has talked of “dark forces”. Rather what had unfolded was “a malicious and concerted attempt” to trash his reputation and remove him from public life. He also shied away from the suggestion the new complaints procedure was set up specifically to ensnare him, suggesting instead the campaign against him was mobilised by the realisation the Scottish government had messed up its initial process and was going to lose the judicial review.

While he agreed with those, like Andrew Neil, who last week railed against a blurring of the boundaries between party, government and Prosecution Service, he denied Scottish democracy was fundamentally broken.

“The Scottish civil service hasn't failed; its leadership has failed. The Crown Office hasn't failed; its leadership has failed. Scotland hasn't failed; its leadership has failed,” he said.

Lady Dorrian

The portrait Salmond painted of the Scottish government’s behaviour was damning, and the First Minister has serious questions to answer when she herself appears before the committee next week.

During almost six hours of evidence, he accused the Scottish government of creating a flawed complaints procedure and of withholding vital documents even - on one occasion - in the face of a search warrant.

That’s before we come to his allegations that Sturgeon breached the ministerial code by misleading parliament about a meeting she had with his former Chief of Staff Geoff Aberdein on March 29 - a meeting at which, Salmond says, she was told of the allegations against him - and by failing to alert permanent secretary Leslie Evans to a subsequent meeting with her predecessor on April 2.

What he failed to do, however, was to link the First Minister in any way to that “malicious and concerted attempt” to destroy him or even to provide any concrete evidence that such an attempt existed.

Instead, he fell back on a tactic he has used throughout this affair: quoting a handful of text and WhatsApp messages between civil servants and government and SNP officials, while alluding to other incriminating evidence he says has been kept hidden.

This unseen evidence wields a greater power over the imagination than anything that has been published. This is what made his foregrounding of the folder so effective, and his come-on to the committee so audacious. So long as that material stays inside the folder it is Schrodinger’s evidence - simultaneously innocuous and explosive, but helping keep the conspiracy theory alive. Unveiled, we would know once and for all.

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There are many obstacles to covering the Salmond affair. Chief among them are the legal complexities. Journalists are, quite rightly, bound by the contempt of court order the trial judge Lady Dorrian introduced to protect the anonymity of complainants. This order is not merely about naming complainants, but about the publication of information that might lead to “jigsaw” identification. It means there are things we cannot adequately explain even though we understand them. The lack of explanation creates a vacuum in which false assumptions flourish.

Another hurdle is the degree to which the parliamentary inquiry has been politicised - internally by Opposition committee members who have used it as a means to attack the SNP, and externally by unionist commentators south of the border who appear to have seized on it as a means to belittle devolution and so undermine the concept of Scottish independence.

These factors, together with increasingly Trumpian factions on social media, have created a tangle of disinformation it is difficult to unpick, but it’s important to try.

Let’s start with The Spectator. Two weeks ago, the magazine went to court in an attempt to challenge the parliamentary committee’s decision not to publish Salmond’s submission in which he claimed Sturgeon had breached the ministerial code. The committee’s decision was based on legal advice that to do so would risk breaching Lady Dorrian’s order. The Spectator, which had already published it with minimal redactions, asked Lady Dorrian to make two specific changes to her order, which she refused. However, she agreed to add a few words which reinforced its existing meaning. The Spectator hailed this as a victory. Later, under pressure, Holyrood's corporate body reversed the decision taken by the parliamentary committee not to publish, only for the Crown Office to intervene demanding that it make further redactions.

In the wake of this, right-leaning commentators including Andrew Neil wrote pieces in which they trashed our institutions, hurling insults like “banana republic” and “tin-pot dictatorship”. They suggested the Scottish government was influencing Crown Office decisions and that the committee was being made a mockery of. Such criticism led to direct attacks on the Lord Advocate, James Wolffe, who was called to parliament, where he denied any part in the intervention. There have also been myriad references to Scotland as a one-party state when, of course, the SNP does not have a majority.

At the heart of this misinformation is an inability, wilful or otherwise, to understand the differences between our devolved institutions and Westminster. For example, Holyrood has much more limited privilege in relation to contempt of court than the UK Parliament which explains why - despite the outrage - the parliamentary committee erred on the side of caution. It may also explain the Crown Office’s intervention when the corporate body decided to publish regardless. Because journalists can't explain the risk of breaching the order without breaching the order, it is understandable many people remain sceptical that the risk exists.

Equally, in England, the role of the Director of Prosecutions is separate from the role of Attorney General whereas in Scotland the Lord Advocate has a dual role as legal adviser to the Scottish government and head of the prosecution service. This may or may not be problematic but it has

been the case since Holyrood was set up in 1999, and the Lord Advocate’s prosecutorial function is enshrined in the Scotland Act so can only be changed by Westminster.

This is not to suggest there aren’t serious criticisms to be made. The committee itself has expressed its frustration over Scottish government’s withholding of documents, and, in particular, its refusal to publish the legal advice it received before the loss of the judicial review, despite two Holyrood votes calling on it to do so.

It’s just a caveat - a klaxon - that there are those with a vested interest in falsely portraying the country as a basket case, and that their attempt to do so may deflect from, rather than illuminate, those failings the committee was set up to investigate .

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Giving evidence to the committee, Salmond also engaged in some mental gymnastics. In his opening statement, he told members the legislation which prevented him from handing over evidence disclosed to him in his criminal trial - S162 of the Criminal Justice and Licensing (Scotland) Act 2010 - was never intended to be used to obstruct a parliamentary inquiry. He knew this for sure because the legislation was passed by his own government. Later, SNP committee member Alasdair Allan pointed out the original Bill *would* have allowed disclosure to a third party if the court agreed, but that this provision was later removed (as a result of amendments introduced by the then Justice Secretary MacAskill).

Addressing the Scottish government’s new sexual harassment complaints procedure, Salmond claimed it was brought in at pace - over a period of just six weeks - and was flawed in multiple ways. Though he said he understood why the Scottish government felt compelled to act in the

wake of #MeToo, he questioned why it didn’t simply build on the existing Fairness at Work policy - brought in during his time as First Minister - rather than creating a new policy from scratch.

Salmond was particularly critical of the decision to make the process apply retrospectively to former ministers because, he said, from 2010 onwards, there was a robust harassment procedure in place.

What committee members skirted around - but held back from exploring - was that, under that supposedly robust harassment procedure, one civil servant who told her line manager about an incident with Salmond was later left alone with the First Minister so he could apologise to her. And that this woman became one of the two complainers under the Scottish government’s new process.

The former First Minister claimed the new harassment procedure was unfair as he was denied access to witness statements and even his own diaries. He said that, not only did the investigating officer Judith Mackinnon have prior contact with the complainers - the point on which the judicial review was eventually conceded - but Evans met one of the complainers and spoke to the other by phone while the inquiry was ongoing. And he insisted the name of one complainer had been disclosed to Aberdein, something Sturgeon has previously denied.

Salmond’s evidence around the judicial review is particularly worrying . We already knew the process was ruled “unlawful and tainted by apparent bias”. It has been widely reported the Scottish government was advised it was unlikely to win as early as October 2018, but that it only conceded in January 2019 after senior and junior counsel threatened to resign on the grounds the case was unstatable. The decision to defend the review eventually cost the taxpayer in excess of £600,000.

Salmond again highlighted a lack of transparency. He reminded the committee there were 17 meetings to discuss how the government might block his legal attempt to prove its inquiry was unlawful, but that it was only in possession of one email relating to those meetings.

He said there had been plans to sist, or pause, the judicial review in the hopes it would be overtaken by the criminal trial. Had that happened, he said, and had he been convicted of a single charge, no-one would have cared about the judicial review, and this inquiry into the Scottish government’s behaviour would never have taken place.

Most problematic for Sturgeon are Salmond’s claims she broke the ministerial code. She originally told parliament she first found out about the allegations against her predecessor from him when he visited her house on April 2, 2018, but it later emerged there had been an earlier meeting with Aberdein in Holyrood four days earlier.

Salmond told committee members the March 29 meeting was pre-arranged not fleeting, as Sturgeon had suggested, and that there was no doubt as to its purpose or the purpose of the April 2 meeting.

He further said that on April 2, Sturgeon had agreed she would intervene in favour of mediation at an appropriate stage, but had later changed her mind.

Salmond’s contention is that failing to intervene to stop an unlawful policy (and to inform the permanent secretary that she knew of the allegations) was a breach of the ministerial code. In addition, he said, either Sturgeon forgot the March 29 meeting and failed to set the record straight when she remembered, or she didn’t forget about it and misled parliament. Either way, that was a separate breach.

In terms of the malicious and concerted effort to destroy him, Salmond has cited Sturgeon’s chief of staff Liz Lloyd, SNP chief executive (and Sturgeon’s husband) Peter Murrell, SNP chief operating officer Sue Ruddick, and SNP compliance officer Ian McCann as individuals involved.

The messages he referenced included one from Murrell who suggested pressure should be put on police to investigate, and one from Evans which said: “We have lost the battle, but we will win the war.”

"I think it came to be believed among some people that the loss of the judicial review would be cataclysmic, not just for Leslie Evans and senior officials and special advisers, but for Nicola Sturgeon herself, and I think unfortunately, people came to the belief that the police process would somehow assist in not losing the judicial review, or making sure the loss would be swept away in the inevitable publicity of the criminal trial,” he said.

Thus he laid the groundwork for his unexpected offer. The committee had used their Section 23 powers to try to compel the Crown to produce evidence that he says proves there was an orchestrated campaign, he said. Why didn’t they use the same powers to compel his solicitors

to provide it? It was a move that left many lawyers scratching their heads again. Section 23 or no Section 23, they agreed, the handing over of material disclosed in his trial by his solicitors would be a crime. Was this a grand bluff? Was this an attempt to force the matter back to the courts? Or to stick up two fingers to the Crown? In an increasingly surreal game of legal ping pong, it is anybody’s guess.

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So what are the long-term repercussions of a week in which the very tenets of our devolved system have been called into question? Do we have a problem - either real or perceived - with the separation of powers?

Salmond is not the only one to have suggested the Lord Advocate should consider his position. And, though Wolffe denied any involvement in the decision to intervene over the publication of Salmond's submission, his performance in the chamber was less than impressive. And yet - within legal circles - few seem to be questioning his integrity or to believe the Scottish government is placing pressure on the Crown. Indeed many lawyers have been at pains to point out Wolffe’s lack of party political allegiance. There is a palpable fury that our institutions are being maligned without any apparent evidence.

Dr Chris McCorkindale, a senior law lecturer at Strathclyde University, said there were three things putting Wolffe under strain - none of which were really his fault.

“The first is the malicious prosecution against Rangers administrators, which he admitted, but which actually took place under his predecessor Frank Mulholland, the second is the Crown Office intervention around the redaction and the third is the pressure from those who have pushed for him to be replaced by a more political Lord Advocate who, they presume, would be more inclined to the Scottish government’s view on the legality of an IndyRef without the consent of Westminster.”

Yet there is little doubt that the dual role of the Lord Advocate has allowed the perception of corruption to take root. McCorkindale says any immediate push for change would have to be treated with caution. “These roles have been combined and have been made to work in combination, for 20 odd years of devolution,”he says.

“Should the complexities of unpicking that be guided by a single exceptional circumstance? “

McCorkindale also suggests that, with complete independence of the law officers, comes a loss of parliamentary accountability. “The reason the Lord Advocate can be called to the chamber is because of his constitutional role,” he says.

The Salmond affair has raised other legitimate questions. For example, some people have questioned why Scottish government documents handed to the Crown and then disclosed to

Salmond’s defence could not separately be passed from the Scottish government to the committee.

There have also been calls for full parliamentary privilege to be extended to Holyrood, something that is said to fall within the competence of the Scottish parliament.

“This is a unique set of circumstances in many ways - it involves a First Minister and a former First Minister, both civil and criminal proceedings at which there was a full acquittal, and a parliament which is heavily constrained and can only do what the Scotland Act says,” said one long-time political observer.

“All of those things together place a great deal of strain on everyone. The committee is straining against legal limitations, all of which on their own are legitimate and valid, but which, taken collectively, make it difficult to deliver.”

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Back at the inquiry things continue to move on apace. The committee seems engaged in a last-ditch attempt to salvage some of its credibility and demonstrate its effectiveness. On Friday, it issued a Section 23 order for the Crown Office to provide all documents relating to correspondence involving Lloyd, Murrell, McCann and Ruddick from November 2017 to January 2019 . It sought this material to test the veracity of Salmond’s claims that elements of the Scottish government were involved in a malicious and concerted effort to destroy him.

It is also understood to be seeking legal advice on whether or not to act on Salmond’s suggestion and issue a Section 23 to compel his solicitors to hand over information.

Early next week, it is expected to hear from the Lord Advocate again, and from Chief Executive of the Crown Office and Procurator Fiscal Service, David Harvie. And then of course on Wednesday, the First Minister will give her evidence - the final act in a protracted drama.

During his evidence, Salmond called for a string of resignations including Evans, Wolffe and Murrell, while declining to call for Sturgeon’s. Yet it is the fate of the First Minister - on whose popularity much of the upswing in support for independence hangs - that will attract most public attention. This is a make or break moment for her and the movement.

It must be daunting. But she has said she relishes the opportunity to lay out her version of events. Like Salmond, she is a polished political performer, as she demonstrated when she went on the attack last week. Asked about her predecessor during a Covid briefing, she focused on the inappropriate behaviour he admitted at his trial, but was reluctant to touch on last week, and from which all misjudgments by other parties - however serious - flowed.

“Maybe creating an alternative reality in which the organs of the state [were] all part of some wild conspiracy against him, for reasons I can’t explain, maybe that’s just easier than accepting at the root of all this might just have been issues in his own behaviour,” she said. “But that’s for him to explain, if he ever decides to pitch up and sit in front of the committee.”

That doesn’t sound like a woman willing to go down without a fight.

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