Alex Salmond Inquiry: Where are we now, what do we know, and what is still to come?

The spectacle of the SNP-led Scottish Government attempting to defend its botched handling of harassment complaints against the former first minister Alex Salmond has been ongoing since 2019.

There is still much left unknown following the Harassment Complaints Committee.

We are now, however, at the end game. Within weeks both Mr Salmond and Nicola Sturgeon will have given evidence (or not – it was described as almost akin to a flip of the coin whether Mr Salmond would actually appear in front of the inquiry by one member of the committee).

Before the Holyrood elections in May, we should have reports from the inquiry and the concurrent investigation from James Hamilton QC into whether the First Minister breached the ministerial code.

Those reports could spell the end of Ms Sturgeon’s political career and – in any case – will have much wider ramifications for the SNP who have been torn apart at the seams by the warring former friends, and the independence movement which could lose its most persuasive and trusted champion.

What do we know?

In reality, not a whole lot. This is partially due to the use of slippery language from civil servants and politicians under oath, but also due to a lack of non-redacted disclosures from the Scottish Government.

The government has been criticised from the very start of the inquiry for being slow to release critical documents to the inquiry.

Development of the procedure

The complaints procedure itself, subject of the first part of the inquiry, was a reaction to the #MeToo movement and viewed by the civil service as filling a gap in its grievance procedures.

This extended to allegations against former ministers and, according to the people involved in its creation, was not an attempt to snare Mr Salmond retrospectively as the former first minister believes.

However, in her first appearance in front of the committee, the permanent secretary Leslie Evans said she first raised concerns around Mr Salmond’s behaviour with Ms Sturgeon as early as November 2017.

In October 2017, Ms Evans had been commissioned to develop the new sexual harassment policy. In December of that year it was signed off by the First Minister.

Police Scotland was also contacted multiple times for advice around the procedure throughout its development.

Complaints handling

In terms of the handling of the complaints themselves, civil servants including the investigating officer Judith Mackinnon have stuck to their argument that having prior contact with the complainants was standard practice.

The Scottish Government is still of the belief its complaints process and the handling of them was correct and potentially defensible, despite concession of the judicial review.

Their belief is that paragraph ten which defines the role of the investigating officer was interpreted too narrowly by the Court of Session.

Judith Mackinnon, the investigating officer of the complaints, said she was “shocked” when the judicial review was conceded and said she had operated in line with a previous draft version of the complaints procedure which was clearer.

This part of the inquiry included several corrections of evidence given under oath and an explanation of a text stating “battle maybe lost but not the war” between civil servants, alongside accusations that witnesses were not being completely candid with the committee.

The complaints process itself is still in use by the Scottish Government but no complaint which would be under its remit has been received since the complaints about Mr Salmond.

We also know the complaints against Mr Salmond are still open and not considered closed by the Scottish Government.

Police Scotland also warned the government it was not trained to investigate potential sexual offence crimes or support victims effectively.

Judicial Review

The main point of contention in regards to the judicial review is the legal advice to the Scottish Government from external and internal counsel and whether the legal action could have been avoided.

By contesting it, the Scottish Government cost the taxpayer well over £500,000.

Legal advice surrounding the judicial review has been blocked from publication at multiple stages by the Scottish Government on the grounds of legal privilege despite two parliamentary votes demanding its release.

It is this that holds the key to whether the Scottish Government could – and should – have conceded the judicial review prior to January 2019.

What we do not know is exactly when the Scottish Government were told to concede the judicial review and why, if they were told early doors that they were unlikely to win, they continued to push forward in defence of the flawed process.

In his submission to James Hamilton, Alex Salmond claimed the Scottish Government knew legal advice said to concede the action at the latest of October 31, 2018.

In the only report released by the Scottish Government relating to specific legal advice, it suggested that a “watershed” moment whereby it became clear the action may have to be conceded was December 21, 2018.

Ministerial Code

Critical to this aspect of the inquiry is whether Ms Sturgeon knew of complaints about Mr Salmond linked to the judicial review prior to April 2, 2018.

Ms Sturgeon initially stated she first knew about complaints against Mr Salmond on April 2, however a meeting with Mr Salmond’s former chief of staff Geoff Aberdein had taken place on March 29, 2018, a meeting Ms Sturgeon claimed she had initially forgotten.

That suggestion has been labelled “untenable” by Mr Salmond and the suggestion the meeting on April 2 was about anything other than the complaints labelled “wholly false”.

The water is muddied further due to the fact Peter Murrell, the chief executive of the SNP and Ms Sturgeon’s husband, claimed he believed it to be government business.

Ms Sturgeon has claimed it was always party business due to the fact she did not know about the complaints against Mr Salmond.

Again, Mr Salmond called this “manifestly untrue”.

Mr Aberdein’s submission to the inquiry – viewed as key to potentially clear up this discrepancy – will no longer be considered due to legal obligations.

Where are we now?

Alex Salmond and Nicola Sturgeon are still yet to give their evidence.

Mr Salmond has been given a ‘take it or leave’ it offer to appear on February 2 and give his evidence, but while it is understood he is keen to do so, the most recent letter from his solicitors to the committee cast serious doubt on whether he will appear at all.

He is hoping for immunity from prosecution should he give evidence that is deemed to include information disclosed to him for his defence during his criminal trial. Doing so would constitute a criminal offence.

However, the Crown Office are understood to hold the position that there is no legal basis for such prosecution.

Whether Mr Salmond appears or not, Ms Sturgeon will follow shortly afterwards and will be the final witness. The date for her appearance is currently pencilled in on February 9.

Peter Murrell will also give evidence again in front of the committee.

All three sessions, but particularly those of the former and current first minister, will be box office.

What is still to come?

The main allegations remain just that – allegations – and are yet to be proven. Ultimately it will be for the committee to decide on its recommendations.

Its remit covers whether lessons can be learned, whether policies in place are fit for purpose, whether actions breached the ministerial code or whether it was the application of the process that was the issue.

What is clear is that the Salmond Inquiry has been hampered at every stage in its attempts to unpick how the Scottish Government managed to fail two women complainants and embroil itself in accusations of conspiracy and cover-up.

Their report – which is due to be published prior to the Holyrood elections in May – is likely to be excoriating.

At every step, the Scottish Government has put up legal barriers to information and civil servants and politicians have become forgetful under oath, requiring multiple written submissions to clarify evidence.

The committee will likely criticise not only the issues discussed but also the Scottish Government’s handling of the inquiry itself.

It would not be a shock if several high-up civil servants were shown the door following its publication. Leslie Evans may well be forced to fall on her sword to minimise the damage.

Back in January 2019 at the very start of the inquiry, Alex Salmond was accused of a “vendetta” against Nicola Sturgeon’s chief of staff Liz Lloyd. She may well be another person subject to intense pressure to resign from allies of the former first minister once the inquiry is finished.

But, the inquiry is unlikely to cause the downfall of Ms Sturgeon in its own right.

Far more likely to claim such a high profile casualty is the independent and non-partisan ministerial code breach investigation by James Hamilton.

His investigation will have full access to the evidence supplied to it and Mr Hamilton is under no obligation to publish submissions – unlike the Parliamentary inquiry – so is less constrained by legal considerations.

It will also include the evidence from Geoff Aberdein, considered by some as critical in potentially showing evidence of a ministerial code breach, that the Holyrood inquiry cannot consider.

And the code is clear, if Ms Sturgeon has misled parliament, she should resign.

If Nicola Sturgeon’s political career is to end before May, it will be Mr Hamilton who will most likely force her to draft her resignation letter.

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