Scottish Government warned not to 'plough on regardless' as Alex Salmond took 'scorched earth' approach to judicial review

Fresh publication of legal advice received by the Scottish Government on the judicial review brought by Alex Salmond shows damning warnings of the potential continuation of the defence of the action four days before the case was deemed unstatable by external counsel.

The documents, published on Friday, also describe a “scorched earth” approach to the harassment complaints process against the former first minister by Mr Salmond.

The notes on prospects to the Scottish Government from Roddy Dunlop QC on December 17, sent to the Lord Advocate and Paul Cackette, the former head of the legal directorate, is damning on the handling of the judicial review by the Scottish Government.

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Fresh legal advice paints a picture of major failings within the Scottish Government around the handling of the judicial review

Reacting, deputy first minister John Swinney said the documents “entirely, utterly disprove” the alleged conspiracy the Scottish Government delayed concession and ignored advice from counsel.

Within the December 17 letter, Mr Dunlop complained of a failure to disclose an unredacted email, a decision that ultimately led to a commission and diligence hearing due to issues with the Scottish Government’s document disclosure.

External counsel warn the Scottish Government that failure to disclose fully an email chain in which senior civil servants discuss “the circumstances in which complaints of harassment should be reported to the police” would “add fuel to the fire of the petitioner’s [Mr Salmond’s] ‘conspiracy theory’”.

Raising serious concerns about their “ability to continue to act” on behalf of the Scottish Government, Mr Dunlop said Permanent Secretary Leslie Evans had failed to provide a precognition and instead had offered “four short paragraphs” that were “not clear to us that it is in the Permanent Secretary’s own words”.

The note of prospects also makes it clear that at this point, the case was all, but unstatable – a decision reached by both external counsel and Scottish Government lawyers – on December 21, four days later.

Describing the situation, Mr Dunlop wrote: “It has become increasingly clear that the approach of the petitioner in this matter is one which may appropriately be described as a ‘scorched earth’ one. It is clear that there is no concern on his part as to who might be criticised, or harmed, as a result of these proceedings.

“We understand that this is well understood by those ‘in the crosshairs’ – most obviously the Permanent Secretary and the First Minister.

“If instructions are to proceed notwithstanding, then so be it. We are not in a position where we are professionally unable to mount a defence (because, for example, there is no statable defence). We are, however, perilously close to such a situation.”

Mr Dunlop said he was “firmly of the view” at least one of Mr Salmond’s arguments would be successful and that despite “other aspects” justifying continuation, he remained “entirely unconvinced” as to the benefit of a full hearing that “might outweigh the potentially disastrous repercussions thereof”.

He said: "Leaving aside the large expenses bill that would inevitably arise, the personal and political fallout of an adverse decision – especially if, as may be the case, it is attended by judicial criticism – seems to us to be something which eclipses by some way the possibility of helpful judicial comments.”

"That being so, and recognising as we do that the wider political picture is something that others are far better than are we to comment upon, we cannot let pass uncritically the suggestion that the petition cannot be conceded.

“Given the potential for harm we simply wish all concerned – and we include the First Minister in this – to be absolutely certain that they wish us to plough on regardless, notwithstanding the concerns which we have outlined.”

Responding to the fresh documents, the deputy first minister, who is still facing a no-confidence vote over his handling of the disclosure of the legal advice to the committee, said they were “consistent” with previous disclosures.

Mr Swinney said: “I am completely clear that these documents, taken in their entirety, utterly disprove the conspiracy theory that the Scottish Government delayed the concession of the judicial review or ignored advice from counsel, or that there was a plot against Mr Salmond.

“These documents demonstrate that the case became unstateable in late December and the Scottish Government conceded quickly afterwards in early January.

“The information in the documents is consistent with what has been shared with the committee in evidence sessions and during arrangements made to let them see key legal advice earlier this year.”

Reacting to the documents, committee member Jackie Baillie highlighted the “basic failure” that a meeting between external counsel, the First Minister and Ms Evans had not been minuted.

The deputy leader of Scottish Labour said: “It is extremely disappointing to hear from John Swinney that several key meetings with counsel are apparently without minutes. The basic failure to ensure that there is a written record of key meetings speaks volumes about the way in which the Scottish Government approached the whole matter.

“I am sure that counsel will have taken notes and it is open to the Scottish Government as the client to waive confidentiality and provide these to the committee, especially those for the meeting on November 13.”

Ms Baillie said it was now “high time” for those responsible for the “fiasco” to “do the decent thing”.

She said: “What the newly-released documents confirm is that the Scottish Government refused conceding the judicial review for as long as feasibly possible and that the astonishing failures of the investigation directly led to the women involved being cruelly let down.

“The documents tell of ‘entirely avoidable’ errors and mention that officials and lawyers were put in ‘extremely difficult’ professional positions due to the failings of the government.

“The Scottish Government should be ashamed of the catastrophic errors it made in this case – errors that failed the taxpayer and most importantly the women involved.

“It is high time that those responsible for this fiasco take ownership of their failings and do the decent thing.”

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