Alex Salmond affair: Scottish Government undertook no internal investigation into 'inexplicable' and ‘catastrophic’ error

Nicola Sturgeon and permanent secretary Leslie Evans failed to order an internal investigation into the “catastrophic” error that led to the judicial review brought by former first minister Alex Salmond to become unstatable.

The failure to disclose documents by Judith Mackinnon to the Scottish Government’s lawyers was described as “inexplicable” by senior counsel during the judicial review and by the final report from the Holyrood inquiry into the scandal.

During her evidence session in front of the committee, the First Minister labelled the error “catastrophic” and “what led to the ultimate concession”.

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However, the Scottish Government has undertaken no internal investigation into why or how the error was made, The Scotsman can confirm.

Former first minister and leader of the Alba Party Alex Salmond campaigns at Stirling Castle. Picture: Jeff J Mitchell/Getty Images

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The legal defeat cost the taxpayer more than £500,000, partially due to the way the judicial review had been handled by the Scottish Government, and was conceded on the grounds of “apparent bias”.

The committee, which was investigating the Scottish Government’s handling of harassment complaints against Mr Salmond, concluded the process for recovering documents was “fundamentally flawed and contributed to the awarding of the maximum expenses”.

The First Minister was also found to have misled the committee in its final report.

Permanent Secretary Leslie Evans faced calls for her resignation following the conclusions of the Holyrood inquiry into the Scottish Government's handling of harassment complaints.

However, she was cleared of breaching the ministerial code by an independent investigation by James Hamilton and survived a vote of no confidence in Holyrood.

Following the publication of the reports, Mr Salmond launched his new political party, the Alba Party.

He was also acquitted of sexual offence charges at a trial in March last year.

An internal investigation into the failures around document recovery was described as the “very least” the Scottish Government should have done by Scottish Labour’s deputy leader Jackie Baillie.

She said: “The SNP Government has repeatedly let down the two women at the centre of this inquiry. Their continued reluctance to investigate their own failings only adds insult to injury.

“An internal inquiry is the very least the Scottish Government should have done after the collapse of the judicial review and Ms Mackinnon was forced to correct her evidence to the committee.”

Alex Cole-Hamilton, the Liberal Democrat member of the inquiry, said the Scottish Government was making “zero effort” to uncover what had gone wrong during the judicial review.

"The Scottish Government's approach to releasing key documents left committee members tearing their hair out,” he said.

"Even their own lawyers complained that material that should have been released during the judicial review and the subsequent court case took several rounds of searching to unearth.

"Seeking to bury key material is a very serious matter and one that the Scottish Government appear to be making zero effort to address."

Alison Johnstone, the Scottish Greens’ lead candidate for the Lothian region, said the Scottish Government could not “simply wish this problem away”.

She said: “There is clearly an urgent need for the Scottish Government to review its record handling procedures. The government cannot simply wish this problem away.

"It was quite clear that the processes that have been in place are not fit for purpose and require an immediate remedy.”

However, in response to a Freedom of Information request asking for details of any internal investigation into the error, the Scottish Government said there had been “no internal investigation of the nature you set out”.

During her evidence session at the Holyrood committee, Ms Mackinnon said she had not been asked to identify information or communications which were relevant to the case at the start of the legal action.

In a separate session, the Lord Advocate, James Wolffe QC, also claimed there was “no decision to withhold documents from the judicial review”, adding that it was the Scottish Government that introduced the fact Ms Mackinnon had “had contact with the complainer at an early stage”.

The review, led by Laura Dunlop QC, examining the complaints handling process itself had nothing to say on the error by Ms Mackinnon.

Murdo Fraser, who sat on the committee as one of Scottish Conservatives’ members, said the lack of an investigation showed the SNP was “devoid of accountability”.

He said: "This is yet more evidence of Nicola Sturgeon's SNP regime being devoid of accountability for the Alex Salmond scandal.

"Her government's wrongdoing was reckless and prolonged. It failed the female complainers and costs taxpayers' untold sums, yet no-one has suffered any sanction."

The judicial review became unstatable almost overnight, legal advice published by the Scottish Government revealed, with Ms Mackinnon, providing fresh documents on December 17, 2018.

The disclosures came about ahead of a commission and diligence hearing and after a request for additional searches to take place for the documents to be discovered and passed to the Court of Session.

The files included a letter from Ms Mackinnon to Ms A, dated January 17, 2018, which raised further questions about a lack of further correspondence between the two individuals.

It also led to the claims made by the Scottish Government as part of the case being described as “plainly and demonstrably untrue” by senior counsel.

An email chain, also disclosed at this point, highlighted “further contact – undocumented” with the disclosures described in the note of prospects from Mr Dunlop as leaving the Scottish Government in a “close to untenable” position.

In legal advice from the Scottish Government’s QC, Roddy Dunlop, on December 19, he described the late disclosure as “unexplained and frankly inexplicable”.

On January 8, 2019, the Scottish Government conceded the case and admitted it had breached its own guidelines around the “prior involvement” of the investigating officer in the case.

A Scottish Government spokesperson said: “As previously stated, the Scottish Government has welcomed the report of the committee, alongside the independent reports produced by James Hamilton and Laura Dunlop QC.

“Together, these three reports highlight a range of important issues and provide the basis for improvement work, which now be taken forward in consultation with others including the Parliament, trades unions and those with lived experience.”

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