Alex Salmond court debacle could kill off new SNP independence surge - Nick McKerrell

A successful demand for a second Scottish independence referendum would need a unified and strong Yes campaign, which a protracted legal battle will not help, writes Nick McKerrell

Nicola Sturgeon with Alex Salmond during an election campaign

A Scottish judicial review hearing has rarely ended with such high drama as it did outside the Court of Session in Edinburgh on January 8.

Former first minister Alex Salmond had used the fairly dry legal process of the highest civil court in the land to challenge the Scottish government (which he led until 2014), and its investigation into allegations of sexual harassment and assault brought against him by two civil servants within the administration.

Before the full hearing scheduled, the Scottish government conceded it had made a fundamental mistake in its recognised complaints procedure by using an officer previously involved in the case to investigate the claims against Salmond.

To all intents and purposes, Salmond “won” his case. A point he was not slow to make on the steps of the court. He stated that the Scottish government had suffered “abject humiliation” and its process had been “unlawful, unfair and tainted by apparent bias” before calling for the head of the Scottish civil service, Leslie Evans, to “consider her position”. As permanent secretary, Evans was responsible for the overall complaints procedure and the appointment of any investigating officers.

Judicial review is a historic procedure designed to make sure decision making by authorities is carried out in a legal and fair way. Particularly important is the concept of “procedural impropriety” – the process around making the decision must follow basic rules of natural justice.

These can vary according to the nature of the decision, but key is a lack of bias – even the appearance of bias can render the outcome void. So the use of an investigator who had previous contact with the women who made the complaints was fatal to the Scottish government’s own report.

As dramatic and significant as this climbdown was (not least to the accusers), ultimately it is a side-show. The actual substance of the complaints against Salmond were not given a second glance by the judge, Paul Cullen. This decision was solely focused on procedure.

The shock that echoed around Scottish politics in August 2018 was not because of the governmental inquiry, but the fact that it was serious enough to involve a referral to the police. Police Scotland’s investigation into potential criminal behaviour is ongoing and is not at all affected by Salmond’s victory in the Court of Session.

Yet the error made by the government in the application of the complaints process seems to have grown deeper following the court’s decision. This is due to the current first minister Nicola Sturgeon’s role in the whole situation. It has been revealed that she met or spoke to Salmond five times after the investigation began in early 2018.

In normal circumstances a meeting between two high-level SNP politicians with a close relationship would not merit much comment. However, these were not normal times; the head of the Scottish government was meeting with a senior party figure being investigated for serious allegations brought by employees of her government. Questions were raised.

In her defence, Sturgeon has claimed she was acting in her party leader role rather than her official one. This line of argument was weakened when it was revealed that also present was her chief of staff –- a party position, but also paid as a government employee. And the meeting was not minuted, which deepens the problem.

Ostensibly this looks like a breach of the published complaints procedure against (current and former) government ministers, which states that the first minister can have no involvement at all in the investigation process until it is fully completed.

In response to opposition parties’ requests, Sturgeon has now referred herself to an independent standards committee to see if she breached the ministerial code. This is chaired by James Hamilton – an ex criminal prosecutor from Northern Ireland. It has been used six times since the Scottish government was established in 1999.

Ironically, the last time was when Salmond referred himself over the existence of legal advice on an independent Scotland joining the EU. He was cleared, although the code needed to be reworded on the issues around advice.

Superficially, it looks like Salmond has used his inner party authority to demand meetings with the first minister despite the inappropriateness of such a move. Sturgeon has however stood by her officials, including Evans, and the complaints procedure, which still remains intact despite Salmond’s court case. Notably she has also stood by the complainers’ rights to pursue their action. This division could have internal party consequences.

Although Salmond resigned his party membership to fight his case, alongside him in court were leading veterans of the SNP: Kenny MacAskill, the ex-justice secretary who used his newspaper platform to attack Sturgeon; and Tricia Marwick, ex-presiding officer of the Scottish Parliament. This had the look of someone rallying the troops for battle.

Sturgeon correctly rejected the idea that she was involved in a conspiracy against Salmond – the problem is, the only people raising such an accusation come from within the SNP or the broader independence movement.

Even if things are only at the phoney war stage, the split could not have come at a worse stage as the Brexit crisis creeps towards the potential chaos of the rejection of Theresa May’s deal.

A successful demand for a second Scottish independence referendum would need a unified and strong Yes campaign. A police investigation, standards committee involvement and the machinations of supporters of the former first minister will not help.

Nick McKerrell is a lecturer in law at Glasgow Caledonian University. This column was first published on The Conversation