Insight: The Alex Salmond inquiry heads for the final showdown
From the outset, the Committee on the Scottish Government’s Handling of Harassment Complaints (or the Salmond inquiry as it is more colloquially known) has proved a carnival of the bizarre. What was supposed to be a forensic examination of the botched inquiry into allegations against the former First Minister has been beset by obfuscation and unaccountable memory lapses on the part of key witnesses, and undignified extra-curricular politicising on the part of Opposition committee members. There has been an onslaught of abuse aimed at Nicola Sturgeon; and an insensitivity towards the complainants whose interests the inquiry is supposed to serve.
Last week, however, it took on a Pythonesque quality. On Tuesday, Salmond was due to appear before the committee. As he made clear after his acquittal on all charges in March, he believes he is the victim of a plot to keep him out of frontline politics. Outside the court, he promised evidence ruled inadmissible by trial judge Lady Dorrian would eventually “see the light of day”. This was supposed to be his big moment; his chance to finally lay out his version of the events leading up to his prosecution.
In the end, that didn’t happen; instead, we were treated to a series of power plays, as he and the nine-member committee wrangled over his attendance.
The committee had already thwarted his plans by refusing to publish WhatsApp messages which had been cited as proof of a conspiracy. Having secured them from the Crown, its members agreed the messages were between women “seeking confidential support” and, as such, were irrelevant to its investigations.
Its subsequent decision not publish a submission in which Salmond accused Nicola Sturgeon of breaking the ministerial code, for fear it would breach a contempt of court order, created a dilemma: should he testify in circumstances where he could not refer to his “bombshell” evidence, or deprive himself of the platform he had sought for the best part of a year?
For a while, Salmond walked a line, hoping to push the committee hard enough that it would allow him to appear on his terms - but not so hard it would decide to use its Section 23 powers to compel him to appear on theirs. The spectre of an explosive press conference was conjured.
Before that could happen, though, The Spectator entered the fray. The right-leaning magazine was already involved; indeed, arguably, its decision to publish a leaked copy of the submission a week or so earlier was what prevented the committee from following suit.
The committee vote was tight (five-four), with the Labour, Conservative and Liberal Democrat members voting for publication and the four SNP MSPs plus former Scottish Green MSP Andy Wightman voting against.
Those members who voted against said that, without the leak, Salmond’s submission could have been published with redactions. But they pointed out the fact most of it was already in the public domain meant it would now be possible for people to cross-refer, and work out what parts had been inked over.
The Spectator decided to try to force the committee’s hand. On Thursday, it asked Lady Dorrian - who made the original contempt of court order - to alter it in a way that would make it clear the committee was free to publish.
She did not accede to their initial request, and The Spectator withdrew it, but she did agree to add a few lines clarifying the scope of the order. This allowed The Spectator and its bombastic chairman, Andrew Neil, to claim a victory and imply the committee would now be forced to publish both Salmond’s submission and a submission by his former chief of staff Geoff Aberdein which is said to corroborate his version of events.
The Spectator’s lawyers were Levy & McRae, who also represent Salmond, while its QC was Ronald Clancy, who acted for the former First Minister at the judicial review which ruled the Scottish government’s inquiry into the allegations against him had been “tainted by apparent bias”.
At the time of writing, legal observers in Scotland were struggling to understand how Lady Dorrian’s tweak - which restates the existing position - had changed anything, but said its implications might become clearer when she publishes her written reasoning on Monday.
Whatever, The Spectator’s case threw the inquiry into further chaos. At an emergency meeting on Friday, the committee decided to postpone Nicola Sturgeon’s planned appearance this Tuesday - at least the fourth time it has done so. It is now running out of time as the report has to be written up, and submitted to the government in time for its contents to be considered before parliament stops sitting on March 25 ahead of the May elections.
Before Sturgeon can give her evidence, the committee has to look at Lady Dorrian’s reasoning and reconsider its position on the submissions from Salmond and Aberdein. If it decides to publish, then Salmond will have to be given a chance to appear. If it doesn’t, it has to decide whether to use its Section 23 powers to compel him to attend, as Sturgeon suggested it should during last week’s FMQs.
As with everything in this benighted affair, the rights and wrongs of recent events are heavily contested. For some, The Spectator is a Valiant-for-Truth figure holding the Scottish government and the parliamentary committee to account where others have failed.
In the hours after the hearing, hundreds took to Twitter to congratulate the magazine for its action. “As a subscriber, I feel honoured that journalism in its truest form exists. It doesn't matter which political party the issue arises from, what matters is democracy,” one message read.
But others are more sceptical, suggesting the magazine’s motives might be less about transparency, and more about trying to damage the leader of the SNP at a time when support for independence is rising.
Likewise, while some believe the Crown, the Scottish government and the committee are colluding to silence Salmond, others see his attempt to dictate the terms of his appearance as proof of hubris.
Particularly contentious is his demand for immunity from prosecution under the Criminal Justice and Licensing (Scotland) Act, which makes it a criminal offence to hand over evidence which has been disclosed to your defence during a criminal trial to any other party.
“Unless this material was in the public domain before disclosure, Salmond cannot use or disclose evidence turned over to him by the Crown during the criminal trial,” explains Andrew Tickell, legal expert and pro-independence commentator.
“He can’t use them for this hearing, for his book, or for anything else without committing a criminal offence.” Tickell points out that the law which prevents Salmond from producing these messages was introduced by the then Justice Secretary Kenny MacAskill, who is now one of Salmond’s closest allies, when Salmond was First Minister. “He’s asking for immunity from disclosure legislation he passed,” he says.
Billed as a Jacobean revenge tragedy, the parliamentary inquiry has turned out to be a tawdry potboiler undermined by leaks, political skullduggery and insufficient concern for the complainants.
What little the committee has been able to establish about the Scottish government’s conduct has done it no credit. The new sexual harassment complaints procedure it introduced in the wake of the Harvey Weinstein scandal appears to have been a rush job, so poorly worded that when the allegations against Salmond were made, those involved failed to grasp they must appoint an investigating officer who had no prior contact with the complainants.
The inquiry has been hampered by an apparent lack of cooperation. A succession of witnesses have obfuscated and contradicted themselves. Leslie Evans, Scotland’s top civil servant, repeatedly replied: “I don’t remember” or “I cannot tell you that” to committee members’ questions, and later apologised for having given wrong information on whether special advisers had a role in drawing up the government’s response to the judicial review.
SNP chief executive Peter Murrell, who is married to Sturgeon, gave contradictory evidence about whether he had or hadn’t been present at a meeting with Salmond which took place at their home on April 2 and whether he had or had not known about it the previous day. This meeting is at the centre of allegations that Sturgeon broke the ministerial code, and, given inquiry witnesses testify under oath, there have been calls for Murrell to be investigated for perjury.
The Scottish government had to be repeatedly pressured to hand over material the committee requested and - perhaps most damagingly of all - refused to waive privilege and release the legal advice it was given in relation to the judicial review.
It has been reported that the government had been warned it was unlikely to win as early as October 2018, but carried on with the case - at a cost of more than £692,000 to the taxpayer. Without access to the advice, however, it is difficult to see how the committee can properly investigate.
Salmond’s behaviour has been no more edifying. His repeated attempts to set pre-conditions for his appearance could be interpreted as a lack of respect for the authority of the committee. Ditto the threat of a press conference if they didn’t yield.
And the tone has been further lowered by Opposition committee members, some of whom have been waging highly emotive Twitter campaigns perceived as undermining the work of the inquiry.
On January 9, for example, Conservative MSP Murdo Fraser tweeted a photograph of Salmond and Sturgeon with the words: “One of them is lying: Who?” before going on to suggest the evidence pointed to Sturgeon.
On January 13, Labour MSP Jackie Baillie retweeted a story suggesting the Scottish government had spent £55,000 preparing civil servants to appear before the committee with the comment “seriously?” and a succession of crying laughing emojis.
Then, on January 21 - a fortnight before The Spectator made its application to Lady Dorrian - Fraser retweeted Neil’s criticism of a Scotland “awash with government-inspired gags on the media, important evidence/submissions censored or buried” with the hashtag #Draintheswamp.
The sense this has become a scalp-claiming exercise is reinforced by the focus on the series of meetings which are at the centre of allegations that Sturgeon broke the ministerial code, even though such possible breaches are the subject of a separate investigation by James Hamilton, former public prosecutions director in Ireland.
Having been failed by the Scottish government, the complainants say they are now being failed by committee members, who have “exploited their painful personal experiences” for political purposes.
After the MSPs decided not to publish their messages to one another, they issued a statement criticising both its use of a Section 23 order to obtain those messages from the Crown and the Crown’s decision to accede to that order.
The committee insists it needed to see the messages before it could form an opinion on whether or not they should be published. But the women said: “Not a single one of these messages relates to the remit of the committee or the committee’s published approach to the inquiry. In short, what the Crown provided are personal communications between friends who supported each other during a traumatic time. Comments made by members of the committee, passing judgement on the motivations of women, describing women’s communications as ‘fair game’ and raising questions as to the genuine nature of the complaints made, have caused considerable distress since the order was placed and do a disservice to all women who have made complaints of this nature.”
Previously, the women had accused committee members of causing distress by fuelling conspiracy theories. They had not felt unable to take part in the inquiry because, when they asked how their welfare could be protected, “the response they received left them unconvinced the committee had given any meaningful consideration to their safety“.
As the committee and Salmond wrangled over his appearance, a separate - but not entirely unconnected - political drama was playing out in Westminster.
Justice and Home Affairs spokesperson Joanna Cherry - an alleged ally of Salmond and a vocal opponent of the Gender Reform Act - was reshuffled off the front bench. Cherry, who successfully challenged Boris Johnson’s prorogation of parliament, has also been a persistent critic of Sturgeon’s leadership and her cautious approach towards securing independence.
On the eve of the party conference, Cherry criticised the SNP’s “tendency to stifle debate.” But if anyone believes demoting her will stifle *her* dissent, they are sorely mistaken; she has already written several newspaper columns and accused a cohort of her SNP colleagues of “performative histrionics redolent of the Salem witch trials.”
The micro-drama is another indication of how great the schism in the SNP has become: Salmond/Sturgeon, gradualist/fundamentalist, progressive/populist - the rift that began in the aftermath of the referendum - and deepened with the sexual assault allegations - threatens to tear the party in two.
And yet it is always worth remembering how issues that seem all-consuming within the bubble may scarcely register outside it. While Twitter was awash with debate on the rights and wrongs of Cherry’s sacking, a poll commissioned by the Scotsman last week showed 57% of Scots had no opinion on it one way or the other.
The parliamentary inquiry was supposed to be the crucible in which the Salmond/Sturgeon feud would be resolved. Either Salmond would achieve his aim and destroy his former protege or she would be cleared of all wrongdoing.
But its finale now seems destined to be messy and inconclusive. The committee is likely to say its investigative powers were curtailed by a lack of cooperation; and, given the political split, its members are unlikely to reach a consensus on many aspects.
For all his promises, the former First Minister does not appear to have stood up his claims of a conspiracy. The messages that were supposed to show the complainants on manoeuvres have judged to be nothing more than women showing each other solidarity; the very definition of #MeToo. And messages between other parties - such as the one sent by Evans which read: “We may have lost the battle, but we will win the war” or the one sent by Murrell suggesting the party should be putting pressure on the police - can be read differently according to your perspective. To some they seem over-zealous; to others they are suggestive only of a party eager to ensure those making sexual harassment allegations are taken seriously.
Salmond has produced no smoking gun: and yet, the fact some texts will never be placed in the public domain allows rumours around them to fester.
There appear to be more unanswered questions around the series of meetings Sturgeon held with Salmond in spring 2018, at which the allegations against him are said to have been discussed.
Even here there is a degree of confusion as to what the First Minister is being accused of; sometimes it appears to be of supporting her friend, sometimes of conspiring against him. It can’t be both.
Nevertheless, there are contradictions that need to be resolved. Sturgeon told parliament the first time she heard about the allegations was when Salmond came to the house on April 2. Salmond says his chief of staff Aberdein set out the reason for the April 2 visit at a meeting four days earlier in Holyrood. Sturgeon says she had forgotten that meeting because it was fleeting and informal. Salmond says this is untrue and that Aberdein can corroborate his version. And so on.
The reason it matters is that Sturgeon has always maintained she believed the April 2 meeting was party rather than government business. If Salmond’s version is true, then Sturgeon misled parliament and breached the ministerial code.
If Salmond and Aberdein’s submissions are published, and Salmond and Sturgeon give evidence, those competing narratives will be given a public airing. Then, at some point, Hamilton will publish his findings.
If the parliamentary inquiry and/or Hamilton find her guilty, will she resign? At last week’s FMQs Jackie Baillie asked her three times and she refused to say.
To those who live and breathe politics, breaching the ministerial code is an instant resigning matter (though, of course, Priti Patel famously did not). Many struggle to understand why this story is not gaining more traction or to countenance the prospect Sturgeon might “brazen this out”.
And yet - outside the bubble - the view is very different. Despite Opposition attempts to capitalise on evidence of serious failings, the general public remains firmly behind the First Minister.
Recent polling for YouGov, for example, found that, while a significant proportion of Scots do not believe either Salmond or Sturgeon’s accounts so far, many more believe Sturgeon. Only 13% believe Salmond has generally told the truth, compared with 50% who say he has not, while 30% say Sturgeon has generally told the truth, versus 36% who say she has not.
Though Salmond’s supporters are disproportionately vocal, particularly on social media, they remain a fringe. Look beyond Twitter and you realise that - at the very moment Salmond has pledged to bring his successor down - she has a net approval rating in Scotland of +21, while his is -60, worse than Boris Johnson’s.
Those around Sturgeon appear to be pushing the line that there was no rule book for the circumstances in which she found herself; and that whatever she did, she did with the best intentions.
It’s not the most convincing of arguments. But with most people consumed by the lockdown and the roll-out of the vaccine programme, there appears to be little public appetite for toppling the First Minister.
As Sturgeon prepares for the final showdown, she must be wondering: will the pandemic save her from an untimely political demise?
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