In the latest twist in the Holyrood inquiry into the government’s actions when dealing with allegations of sexual harassment against the former First Minister, the committee convener has written directly to the courts asking for access to information it believes has been wrongly withheld by the Scottish Government.
Linda Fabiani, who has already expressed the committee’s strong frustration with the “obstructive” actions by the government, has also written to Alex Salmond’s legal representative and to Deputy First Minister John Swinney, to alert them to the MSPs’ decision to bypass the government and write to the courts.
The committee has asked to see a raft of files from Mr Salmond’s successful legal battle against the Scottish Government in 2018, in which the government's actions were ruled unlawful and “tainted with bias”, and the former First Minister was awarded £521,000.
It wants sight of all evidence lodged by Mr Salmond and the government, as well as affidavits, pleadings, disclosed documents, and costs information.
The move came just hours after Scottish Labour committee member Jackie Baillie revealed she had again been told the government will not disclose the full cost to the taxpayer of its defence in the judicial review – a cost she believes could top £1 million of taxpayers’ money.
The refusal to declare the sums involved came a day after the committee criticised the Scottish Government for failing to provide all documentation requested – with one member, Scottish Tory MSP Murdo Fraser, accusing Nicola Sturgeon of misleading Parliament as she had pledged the government would give all information demanded.
His colleague, Oliver Mundell, was today ejected from the Holyrood chamber for claiming the First Minister had “lied” when promising the Scottish Government's full co-operation with the inquiry. He refused to withdraw his accusation that "she lied to Parliament" when challenged by Presiding Officer Ken Mackintosh, who told him to leave.
Writing to the Scottish Courts’ Principal Clerk, Ms Fabiani said that to fulfill the committee's remit, it was seeking to see “the entire court process of the judicial review”, “including copies of relevant documents lodged with the Court” and while it had asked for these from “the parties to the case”, they had not been forthcoming.
She wrote: “Given the importance of these proceedings and the time constraints on the Committee in fulfilling its remit, the Committee has decided to approach the Court directly for confirmation on the position in relation to access to court documents in this case. We consider that having sight of some of the court documents is essential to enable the Committee to meet the terms of its remit.”
Her letter acknowledges that the Scottish Government and Mr Salmond’s lawyers have agreed the committee should have access to the court documents, but differed “in terms of their understanding of what access can be provided to the requested documents without the court’s permission”.
She added: “Both parties appear to be content for the Committee to have access to court records provided that all relevant legal restrictions are complied with.”
Earlier Ms Fabiani had reiterated the “frustration" felt by MSPs about a lack of evidence supplied to its inquiry. “We’ve had some from the Scottish Government. We don’t feel it’s enough. We feel we could also have some more from Mr Salmond. Perhaps his view on how things went.”
Asked who has been obstructing the inquiry, she said: “We write to those who are in charge, and we would expect those who are in charge to make the judgement of who the evidence comes from. The Committee is now at a stage where we cannot proceed any further.”
Ms Baillie also revealed she had written to Mr Swinney about how many civil servants had been involved in the work preparing for the judicial review, broken down by the hours they were involved and their salary band.
She also asked why, if the Scottish Government can calculate the staff costs of responding to Freedom of Information requests, it is “unable to provide information to a parliamentary committee regarding the cost of staff time” to prepare for the judicial review.
However Mr Swinney said staff did not keep such records of how they worked and costs would be impossible to calculate.
On top of the £512,000 paid to Mr Salmond when the government lost the judicial review, an additional cost of £118,000 was also spent on advice from a QC, but the government as yet has not disclosed the costs of senior civil servants preparing for the judicial review over several months.
Ms Baillie said: “This is the latest example of the secrecy and obstruction that this committee has faced from the Scottish Government and it is quite simply unacceptable. We know that the judicial review cost a significant amount of public money. It is vital that the Scottish Government comes clean over just how big that bill was.
“In the last few months we have all seen the depth of secrecy and obfuscation practiced by the highest level of the Scottish Government. This is undignified, undemocratic and unacceptable: It must end.”
In his responses to Ms Baillie, Mr Swinney said staff working on responding to the judicial review were civil servants “who receive a salary rather than being separately remunerated for dealing with particular matters.”
He added: “In addition, they do not record the proportion of their time that they spend working on particular matters as a matter of course. It is therefore not possible to say how many hours were spent by civil servants involved in this work. Staff working on the judicial review were in band A, B, C and the Senior Civil Service.”
Mr Swinney also said that dealing with an FOI request involved following a “number of distinct steps”, and an exercise had previously been done to enable the estimation of "how much time, broken down by staff band, was spent on each step.”
He said: “This was used to develop an estimate of the cost for handling requests, reviews and appeals. The figures were uprated for inflation in 2019. This approach was a bespoke exercise that looked at the steps in handling an FOI and the Scottish Government has not conducted a similar exercise for conducting litigation.”
“Staff working on responding to the judicial review are civil servants who receive a salary rather than being separately remunerated for dealing with particular matters. In addition, they do not record the proportion of their time that they spend working on particular matters as a matter of course. It is therefore not possible to say how many hours were spent by civil servants involved in this work.”
The Scottish Government has insisted that it is cooperating fully with the inquiry and “strongly rejects any suggestion of obstruction”. It also said it intends to initiate legal proceedings aimed at allowing the release of further documents to the committee.
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