Nicola Sturgeon Holyrood inquiry: SNP leader fights for her political life

Scottish First Minister Nicola Sturgeon is fighting for her political life as she slammed ‘utterly irresponsible’ calls from Opposition MSPs to resign over her handling of the Alex Salmond sexual harassment case after bombshell legal advice appeared to blow holes in her defence.  

The Scottish Conservatives last night vowed to table a confidence vote in the SNP leader after the papers were published on the eve of her appearance at a hearing into the row over allegations levelled at her predecessor. 

They showed that the SNP administration knew that the court fight against Mr Salmond brought by the former First Minister in 2018 was doomed three months before he eventually won the case. But they went ahead with the court case anyway, and it ended up with former First Minister Mr Salmond being awarded more than £600,000 in costs and damages.  

There have been allegations that failing to heed the opinions of lawyers would have amounted to a breach of the ministerial code, a potential resignation matter.  

Last night it also emerged that evidence by two senior figures backed up many of Mr Salmond’s claims about Ms Sturgeon in explosive submissions to the Holyrood inquiry over the botched investigation into complaints about him. 

Mr Salmond’s lawyer Duncan Hamilton and former special adviser Kevin Pringle contradict Ms Sturgeon’s submission to a Holyrood inquiry and fuel claims Ms Sturgeon misled the Scottish parliament over what she knew about the harassment claims against Mr Salmond and when.     

In an extraordinary statement, Ms Sturgeon denied breaking the ministerial code and called Tory moves to call a no-confidence vote during the pandemic ‘utterly irresponsible’. She will give her full rebuttal today.

A spokeswoman thundered: ‘The First Minister will address all of the issues raised – and much more besides – at the committee tomorrow, while the independent adviser on the ministerial code will report in due course. But to call a vote of no confidence in the middle of a pandemic, before hearing a single word of the First Minister’s evidence, is utterly irresponsible.

‘It is for the public to decide who they want to govern Scotland and – while we continue to fight the Covid pandemic – with the election campaign starting in just 20 days, that is precisely what they will be able to do.’ 

Scottish Justice Secretary Humza Yousaf rushed to Ms Sturgeon’s defence, telling BBC Newsnight: ‘No10 [Downing Street] are watching this not because they care about women who come forward to make allegations in relation to sexual harassment, but actually because what they want to do is try to weaken Nicola Sturgeon, weaken the SNP, because there have been 22 polls in a row that have shown that support for independence is the settled will of the Scottish people.’

‘In terms of the allegations being made about the Scottish government, I have read a number of spurious conspiracy theories which I’m afraid have been completely built on sand. They have been washed away.’

The Scottish Conservatives have accused Ms Sturgeon of breaching the ministerial code up to 38 times during the row, with party leader Douglas Ross claiming that the First Minister ‘lied to the Scottish Parliament’.

A Tory dossier highlights dozens of instances when they say Ms Sturgeon appears to have broken the ministerial code – including accusations of repeatedly misleading the Scottish Parliament about when she first knew of the allegations against Mr Salmond, delaying settling the judicial review despite legal advice, and meeting Mr Salmond on government business without any officials present or records being taken.  

Gordon Brown claimed that the feud between Ms Sturgeon and Mr Salmond is ‘bringing the country down’, telling ITV News: ‘We’re worried about the virus, we’re worried about the economic recession, I’m worried about people coming together across the whole of Britain to deal with it, and we’ve got this feud about who said what when, and on the basis of some very bad behaviour.’

Asked if Ms Sturgeon would have to resign if she is found to have broken the ministerial code, the former Prime Minister said: ‘If we cannot uphold in public life the highest standards of integrity, and if we cannot trust each other that we will take seriously the vows we make when we go into office, then I think anything goes and it becomes anarchy, and I don’t think that’s the way forward.’  

They showed that Ms Sturgeon (pictured yesterday) and the SNP administration knew that its efforts to resist a judicial review brought by Mr Salmond in 2018 over the handling of complaints against him - over which he was exonerated - was likely to fail

They showed that Ms Sturgeon (pictured yesterday) and the SNP administration knew that its efforts to resist a judicial review brought by Mr Salmond in 2018 over the handling of complaints against him - over which he was exonerated - was likely to fail

They showed that Ms Sturgeon (pictured yesterday) and the SNP administration knew that its efforts to resist a judicial review brought by Mr Salmond in 2018 over the handling of complaints against him – over which he was exonerated – was likely to fail

In six hours of brutal testimony last week, Alex Salmond laid out a case that senior SNP figures conspired to try to force him out of public life over harassment claims

In six hours of brutal testimony last week, Alex Salmond laid out a case that senior SNP figures conspired to try to force him out of public life over harassment claims

In six hours of brutal testimony last week, Alex Salmond laid out a case that senior SNP figures conspired to try to force him out of public life over harassment claims

Nicola Sturgeon

Nicola Sturgeon

The Scottish Tory dossier

The Scottish Tory dossier

Nicola Sturgeon (left) has denied breaking the ministerial code and said she will give her full rebuttal today. The Conservative dossier (right) highlights dozens of instances when Ms Sturgeon appears to have broken the ministerial code

What are the key issues in the row engulfing SNP?

How and why did the Scottish government mishandle allegations against Alex Salmond?

The Scottish government launched an investigation in 2017 after two women made formal complaints against Alex Salmond.

He launched legal action against the government’s handling of the investigation and won a judicial review in January 2019, receiving £512,000 to cover his legal fees. 

The parliamentary inquiry is examining how ministers and civil servants conducted the probe.

Mr Salmond was charged with 13 counts of sexual assault, including attempted rape, but was acquitted of all charges in March 2020.

Mr Salmond has claimed he was the victim of a conspiracy by senior SNP figures to end his role in public life.  

What did Nicola Sturgeon know and when?

Ms Sturgeon originally told MSPs she learned of complaints against Mr Salmond on April 2, 2018, when the pair met at her house.

That meeting is crucial as it is unclear whether it was SNP business, or government business – which should have been officially recorded.

Peter Murrell, the chief executive of the SNP and Ms Sturgeon’s husband, initially said he was not at home, but later revealed that he arrived home during the discussion.

He insists he did not ask what they were talking about. 

Ms Sturgeon has also admitted she ‘forgot’ about a discussion with Mr Salmond’s ex-chief of staff four days earlier where they talked about the issue. 

The ministerial code says that ‘ministers who knowingly mislead the parliament will be expected to offer their resignation to the First Minister’.

Ms Sturgeon is facing a separate independent investigation led by James Hamilton, who has to decide if she broke the ministerial code. However, it is thought that she is the final arbiter of whether the code has been breached.  

Does Mr Salmond have evidence of a conspiracy against him?

Mr Salmond has said he is the victim of a ‘prolonged, malicious’ conspiracy by senior SNP and government figures. 

He has suggested Mr Murrell was part of efforts to damage him. 

Ms Sturgeon has demanded he presents hard evidence that is the case. However, he insisted that he is not in the dock and the government has already conceded it acted illegally.   

Why was Mr Salmond’s evidence to the inquiry redacted?

Mr Salmond’s submission to the inquiry was released online on Monday, but the Crown Office raised concerns with Holyrood about it, asking for redactions. 

He has raised questions about why the step was taken and whether it amounted to inappropriate interference.  

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The Scottish Government launched an investigation into allegations of sexual harassment by Mr Salmond, the former first minister, but it was found to be unlawful, unfair and ‘tainted by apparent bias’ because of prior contact between the investigating officer and two of the women who complained.

Redacted legal advice published by the Scottish Government tonight showed that lawyers advised them in September 2018 that there ‘is a real risk that the court may be persuaded by the petitioner’s case in respect of the ground of challenge based on ”procedural unfairness”.’

On December 6, 2018 legal advisers told ministers that in their view the ‘least worst option’ would be to concede the petition.

They wrote: ‘We understand how unpalatable that advice will be, and we do not tender it lightly.

‘But we cannot let the respondents sail forth into January’s hearing without the now very real risks of doing so being crystal clear to all concerned.’

It took the Scottish Government until January 8 for the Government to concede the case – a week before the full judicial review was due to start.

Labour’s shadow Scotland secretary Ian Murray said: ‘It’s little wonder the SNP Scottish government tried to block the publication of legal advice. 

‘They were told they were likely to lose case against the former first minister but made the political decision to continue proceed anyway – losing hundreds of thousands of taxpayers money in the process.’

Tonight, Ms Sturgeon’s version of events was thrown into doubt after two witnesses backed up Mr Salmond’s claim that she misled parliament about a meeting with her predecessor.

Written evidence from both Duncan Hamilton – a former SNP MSP and lawyer for Mr Salmond – and the SNP’s former communications director Kevin Pringle contradict Ms Sturgeon’s statements to parliament and her submission to a Holyrood inquiry.

The current First Minister originally told parliament she became aware of the investigation into harassment claims against Mr Salmond when he told her at her Glasgow home on April 2, 2018.

She subsequently admitted to having ‘forgotten’ a meeting four days earlier with his former chief of staff, Geoff Aberdein, in which the investigation was reportedly discussed.

Ms Sturgeon said she understood the April 2 meeting to be about party business – the suggestion Mr Salmond was to quit the SNP – rather than government business, to explain why the meeting had not been recorded by a civil servant.

But Mr Salmond asserts that there was ‘no doubt’ it was about the government’s investigation of him and, under oath on Friday, told MSPs that three other people knew the meeting on March 29 was to arrange talks about the allegations.

He named the witnesses as Mr Aberdein – his former chief of staff who met with Ms Sturgeon in her parliamentary office to allegedly arrange the April 2 meeting – Mr Pringle, and Mr Hamilton.

While Mr Aberdein’s evidence will not be published by the Holyrood inquiry into the government’s unlawful investigation, responses from the other two men reveal they both believe Ms Sturgeon was aware the meeting would be about the government’s investigation of Mr Salmond.

Mr Hamilton, who attended the meeting as Mr Salmond’s legal representative, wrote: ‘I was aware that Mr Aberdein was meeting the First Minister at the Scottish Parliament on March 29 2018 for the purpose of discussing the complaints.

‘Mr Aberdein made me aware of that meeting and its purpose in advance.’

He explained that Mr Aberdein spoke to him after the meeting and had conveyed ‘that a further meeting would be arranged to discuss the complaints with the First Minister’.

‘That meeting was arranged for 2nd April 2018. I was invited to that meeting and travelled to it along with Mr Salmond and Mr Aberdein,’ he wrote. I would further note that the letter received from the Scottish Government was the sole focus of the meeting.

Key witnesses contradict Sturgeon’s account of key meeting in early 2018 

Duncan Hamilton, Mr Salmond’s lawyer

‘I can confirm that the First Minister did offer to assist. We discussed mediation. My clear recollection is that her words were: ‘if it comes to it, I will intervene.’

On the April 2 meeting: ‘The letter received from the Scottish Government [informing Mr Salmond of the government probe] was the sole focus of the meeting.

‘I can also confirm that I was told the name of a complainant by Mr Aberdein in the early part of March 2018… The name of the complainant had been given to Mr Aberdein by a senior government official.’

Kevin Pringle, Mr Salmond’s former special adviser

‘I can confirm from my conversations with Mr Aberdein that he is in no doubt that a complainant’s name was shared with him at the meeting.

‘I know he was clear that the purpose of the meeting on 29 March 2018 was to discuss the two complaints that had been made against Mr Salmond.’ 

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‘Further, when we arrived, everyone in the room knew exactly why we were there. No introduction to the subject was needed and no one was in any doubt what we were there to discuss.’

Mr Pringle added: ‘Based on my contact with Mr Aberdein, I know he was clear that the purpose of the meeting on March 29 2018 was to discuss the two complaints that had been made against Mr Salmond.’

Ms Sturgeon has denied the claims, which are being investigated by a separate inquiry led by James Hamilton QC, and has refused to say whether she would resign if found to have broken the ministerial code.

Mr Pringle also confirmed Mr Salmond’s assertion that the name of one of the women had been revealed to Mr Aberdein, whom he said was in ‘no doubt’ it had happened.

Asked about the suspected leak of a complainer’s name during First Minister’s Questions last week, Ms Sturgeon replied: ‘To the very best of my knowledge, I do not think that happened.’

The claim was corroborated by Mr Hamilton, who wrote: ‘I can also confirm that I was told the name of a complainant by Mr Aberdein in the early part of March 2018.

‘I cannot recall the precise date, but it was very shortly after March 7, the date Mr Salmond received his letter. The name of the complainant had been given to Mr Aberdein by a senior government official.

‘I confirm that I am aware of the identity of the government official who gave the name of the complainant to Mr Aberdein.

‘The fact that the government official had shared that information with Mr Aberdein was reported to me, and to Kevin Pringle, on a conference call. I had never heard of the individual named, but Mr Pringle had.’ 

MSPs had voiced fury after it emerged Ms Sturgeon could ‘dodge’ questions today – as the legal advice was not due to be published until after he appearance.

Her deputy John Swinney has been accused of treating Holyrood with ‘contempt’ by dragging his heels about handing over key documents.

He previously admitted that lawyers had ‘reservations’ about continuing to resist the judicial review.

However, he insisted that legal advice will show there were ‘good public policy arguments and reasonable grounds’ for continuing the wrangling.   

He agreed to release it after he himself faced a no confidence motion.

INQUIRY DEMANDS INFORMATION ABOUT SALMOND’S ACCUSATIONS OF EVIDENCE SUPPRESSION 

Alex Salmond’s lawyers and the Scottish Government have both been asked to release further information by the Holyrood inquiry into the unlawful investigation of the former first minister.

Towards the end of Mr Salmond’s evidence session on Friday, he suggested his lawyers would be ‘extremely willing’ to provide the committee with documents that have previously been denied to it by the Scottish Government.

Speaking under oath, he said there had been an ‘undeniable’ pattern of non-disclosure and ‘deliberate suppression of information that is inconvenient to the Government’.

Committee convener Linda Fabiani has now written to David McKie of Levy and McRae to ask him to provide the transcript of the Commission and Diligence – the process used for the recovery of evidence during Mr Salmond’s successful legal challenge of the Government’s investigation.

The committee has also asked for a copy of a witness statement, referenced during the evidence session, in which a government special adviser is alleged to have said they expected to lose the judicial review to Mr Salmond, but ‘get him’ in the criminal case.

The former SNP leader suggested it was an indication that the Government hoped ‘the criminal case would ride to the rescue, like the cavalry over the hill, and that somehow the civil case would never be heard’.

He also cited evidence released to the committee that the Permanent Secretary – Scotland’s most senior civil servant and the decision-maker in the investigation of Mr Salmond – had contacted two of the complainants during the process.

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Scots Tory MSP Murdo Fraser said: ‘John Swinney’s response to the Scottish Parliament’s requests for the legal advice have been a disgrace from start to finish. He is showing contempt for the inquiry committee and the entire Parliament.

‘The Deputy First Minister grandstanded about finally providing hand-picked parts of the legal advice, overlooking that he only acted when his job was on the line.

‘Whatever he provides may not even be published before the First Minister’s evidence session, allowing her to avoid questions on it and dodge scrutiny yet again.

‘The Scottish Conservatives will hold a No Confidence vote in the Deputy First Minister this Thursday if he has not respected the will of Parliament by then.’  

Mr Swinney’s defence came in a letter to the Holyrood committee of inquiry ahead of its long-awaited session with Ms Sturgeon today. 

Reacting to developments, Scottish Tory leader Douglas Ross told BBC Newsnight that Ms Sturgeon ‘has misled parliament’ and ‘lied to the people of Scotland’. 

‘We have credible witnesses confirming that she was aware of the allegations against Alex Salmond prior to when she previously said she was,’ he said.

‘And, crucially, a complainant’s details were released to Mr Salmond’s team. I mean that is just absolutely awful that the women at the heart of this have been so badly let down. And that is before we even look at the absolute waste of taxpayers’ money, given that the Scottish government knew months before they finally gave up on their case, that it was doomed to failure.’

‘There is now clear corroboration that Nicola Sturgeon has lied to parliament. And we have lost First Ministers of Scotland for far less. She is accused, and there is a huge amount of evidence now that she has misled parliament and misled the people of Scotland.’

‘I think we have now calculated over 30 occasions when we believe Nicola Sturgeon has breached the Ministerial Code, a number of occasions when she has lied to parliament, where she has failed to correct the record. This is a damning indictment on her performance as First Minister and how she has led this government.’

‘This whole sorry saga is dragging down Scottish politics and the reputation of the Scottish parliament. We need to clear things up and have a fresh start. I believe that can only begin if we see the resignation of the First Minister, who has clearly lied to parliament and the people of Scotland.’

Mr Salmond’s lawyers and the Scottish Government have also both been asked to release further information by the Holyrood inquiry into the unlawful investigation of the former first minister.

Towards the end of Mr Salmond’s evidence session on Friday, he suggested his lawyers would be ‘extremely willing’ to provide the committee with documents that have previously been denied to it by the Scottish Government.

Speaking under oath, he said there had been an ‘undeniable’ pattern of non-disclosure and ‘deliberate suppression of information that is inconvenient to the Government’.

Committee convener Linda Fabiani has now written to David McKie of Levy and McRae to ask him to provide the transcript of the Commission and Diligence – the process used for the recovery of evidence during Mr Salmond’s successful legal challenge of the Government’s investigation. 

Giving evidence to a Holyrood committee, James Wolffe QC said he had recused himself from key decisions over the probe into handling of allegations against Alex Salmond

Giving evidence to a Holyrood committee, James Wolffe QC said he had recused himself from key decisions over the probe into handling of allegations against Alex Salmond

John Swinney was accused of dragging his heels over releasing the legal advice

John Swinney was accused of dragging his heels over releasing the legal advice

Giving evidence to a Holyrood committee yesterday, James Wolffe QC (left) said he had recused himself from key decisions over the handling of allegations against Alex Salmond. John Swinney (right) has been accused of dragging his heels over releasing the legal advice 

Mr Wolffe was grilled on the eve of the long-awaited appearance by Nicola Sturgeon

Mr Wolffe was grilled on the eve of the long-awaited appearance by Nicola Sturgeon

Mr Wolffe was grilled on the eve of the long-awaited appearance by Nicola Sturgeon

Scottish Tories accuse SNP of deliberately fixing Sturgeon’s committee grilling for same day as the Budget  

The Scottish Tories have accused the SNP of trying to protect Nicola Sturgeon by fixing her committee grilling for the same day as the Budget. 

The First Minister is finally set to give her testimony at Holyrood today – with her career on the line.

But the showdown could be overshadowed with Rishi Sunak delivering his historic post-Covid Budget on the same day. 

A Scottish Tory spokesman said: ‘The timing of this appearance is certainly very convenient for Nicola Sturgeon.

‘During Alex Salmond’s evidence last week, the SNP MSPs on the committee embarrassed themselves by trying to run out the clock. It was a hopeless filibuster attempt that failed.

‘Now they’re clearly trying to give their boss a helping hand by limiting when and how long she appears before the committee.

‘At every turn the SNP are trying to shut down scrutiny and cover up what really happened in this sorry affair.’

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The committee has also asked for a copy of a witness statement, referenced during the evidence session, in which a government special adviser is alleged to have said they expected to lose the judicial review to Mr Salmond, but ‘get him’ in the criminal case.

The former SNP leader suggested it was an indication that the Government hoped ‘the criminal case would ride to the rescue, like the cavalry over the hill, and that somehow the civil case would never be heard’.

He also cited evidence released to the committee that the Permanent Secretary – Scotland’s most senior civil servant and the decision-maker in the investigation of Mr Salmond – had contacted two of the complainants during the process.

Mr Salmond explained: ‘Perhaps the most significant thing about it is that that was the first time that my legal team, I, the committee, or anybody, knew about that.

‘It was not disclosed across the judicial review, despite the duty of candour, which was explained to the Government by its own counsel and by Lord Pentland.

‘It was not even disclosed in the criminal process, and I will not stray into that, but a specific search warrant was applied on the Government, a year past – October or November – that specifically asked for contact between the permanent secretary and complainants, and that contact was not disclosed even to a search warrant by the Crown Office.’

He added: ‘The Government ignored the provisions of a search warrant in the criminal case and, despite the impact on the administration of justice, still withheld key documents that should have been put before the jury.

‘This committee has been blocked and tackled at every turn, with calculated and deliberate suppression of key evidence.’

Describing the disclosure of Permanent Secretary Leslie Evans’ involvement as ‘almost beyond imagination’, Mr Salmond said: ‘That is not about the duty of candour; it is a refusal to produce information in the face of a search warrant, which is obstruction of justice. There are consequences for such things.’

In a letter to Deputy First Minister John Swinney, the committee demanded that the Government hand over all records relating to a possible pause – known as sisting – to the judicial review if criminal charges were brought against Mr Salmond.

Ms Fabiani wrote: ‘The committee notes that in your letter sent yesterday evening you suggest you asked officials to assess all records relating to sisting the judicial review and have decided that it does not substantiate comments made in evidence by the former first minister.

‘The committee requires to receive all records that refer to or relate to any consideration or discussion of sisting the judicial review.

‘It is not for the Government to assess the evidence and inform the committee of its conclusions. It is for the committee to receive evidence from different parties, assess it and reach findings.’

It also asks the Government to release a draft letter – if it exists – from the First Minister to former first ministers informing them of a new harassment claims policy that would include former ministers for the first time.

In six hours of brutal testimony last week, Mr Salmond laid out a case that senior SNP figures conspired to try to force him out of public life over harassment claims. He was subsequently cleared of wrongdoing in a trial.

He also vented fury that the Crown Office, led by Lord Advocate James Wolffe, had forced the redaction of sections of his written evidence to the committee. 

Mr Wolffe dismissed claims of interference in the Alex Salmond probe as ‘wholly without foundation’.

Giving evidence to the inquiry he said he had recused himself from key decisions over the allegations against the former First Minister.

And he flatly rejected that idea that the Crown Office had insisted on the redaction of parts of Mr Salmond’s written evidence in a bid to hamper the process.  

Mr Wolffe said: ‘Any suggestion, from any quarter, that the Crown’s decision-making has at any time been influenced by irrelevant considerations or improper motivations would be wholly without foundation.

‘Insinuation and assertions to the contrary are baseless.’

He said the crown had been criticised for ‘actions it has taken to protect the identity of the complainers’ at Alex Salmond’s criminal trial, at which he was acquitted of all charges.  

The Scots Tories' allegations about Ms Sturgeon include repeatedly misleading the Scottish Parliament about when she first knew of the allegations against Mr Salmond, delaying settling the judicial review despite legal advice, and meeting Mr Salmond on government business without any officials present or records being taken

The Scots Tories' allegations about Ms Sturgeon include repeatedly misleading the Scottish Parliament about when she first knew of the allegations against Mr Salmond, delaying settling the judicial review despite legal advice, and meeting Mr Salmond on government business without any officials present or records being taken

The Scots Tories’ allegations about Ms Sturgeon include repeatedly misleading the Scottish Parliament about when she first knew of the allegations against Mr Salmond, delaying settling the judicial review despite legal advice, and meeting Mr Salmond on government business without any officials present or records being taken

The legal advice received by the Scottish government over Mr Salmond’s judicial review of its complaints procedure is due to be published after ministers caved in.

Mr Wolffe suggested he had not been asked whether the advice could be released until yesterday, as ministers had not believed the ‘public interest’ favoured its disclosure until then.  

The advice relates to Mr Salmond’s successful legal challenge of the Scottish Government’s harassment complaints procedure, which led to him being awarded more than £500,000.

In a letter to the committee this morning, Mr Swinney said details of the legal advice would be released this afternoon – and they show ‘reservations’ about proceeding with the case.

‘The documents confirm that, whilst reservations were raised about the judicial review following the identification of the issue of prior contact with the complainers in late October, there were good public policy arguments and reasonable grounds for the Government to continue to defend the judicial review and to seek a determination from the Court on the matters raised, until the events of late December 2018,’ he wrote. 

The Scottish Tories submitted a motion of no confidence in Mr Swinney at Holyrood yesterday after accusing him of failing to comply with two parliamentary votes calling for the publication of legal advice.

Tory whip Miles Brigg MSP said he will not withdraw the Motion of No Confidence until MSPs are given assurances that SNP Ministers will deliver everything the committee has requested. 

Mr Salmond insisted last week that, if the case was pursued by Ms Sturgeon against legal advice, it would be a breach of the ministerial code. 

Mr Swinney said: ‘In normal circumstances, government legal advice is not released. Indeed, such is the importance of being able to get frank, private advice, it is almost unheard of for the legal advice to be released.

‘But, we have to acknowledge that the issues at stake now are not normal. The very integrity of the legal system is being questioned.

‘Serious allegations have been made. This material allows people to confirm that these allegations are false.

‘We have already shared in private with the Scottish Parliament’s committee on these issues the substance of the advice.

‘Now, we recognise that in order to counter to the false claims being made by some, we must go further. Subject to the mandatory legal checks and processes, we will release the key legal advice.’ 

It would have been the second time in less than a year that Mr Swinney faced a debate on his position after he survived a no-confidence in August thanks to the Scottish Greens. This time they had signalled they would vote against him.  

The Scottish parliament has twice voted to compel the release of the advice ministers and officials obtained during the judicial review brought about by the former SNP leader.

However, they have previously refused to do so, citing legal privilege. In January 2019, the Government was forced to admit it had acted unlawfully and its investigation had been ‘tainted by apparent bias’ after Mr Salmond successfully challenged its investigation into complaints against him.

The outcome of the probe was set aside when it emerged that the investigating officer had prior contact with two women who made allegations against Mr Salmond.

It was previously revealed that the issue had been identified months before the Government conceded. But the inquiry is keen to know when ministers and officials were advised to drop their defence – and admit defeat. 

Mr Swinney’s decision has received the prior agreement of the Law Officers in line with paragraph 2.40 of the Scottish Ministerial Code.

Ahead of release, under the General Data Protection Regulation, legal notifications to individuals impacted are required.

The Scottish Government said that these are expected to be complete and, subject to them, the Parliament will receive the material immediately thereafter.

The six questions Nicola Sturgeon MUST answer – as papers show her government ignored legal advice to fight Alex Salmond in court

Q: Why were meetings and conversations with Alex Salmond kept secret from the public?

Miss Sturgeon met her predecessor at her home on April 2, 2018, when she claimed to first become aware of the government investigation into complaints about his conduct. 

She held two further meetings, on June 7 and again at her home on July 14. She also spoke to him twice by phone, in April and July. 

Despite government business being discussed on those five occasions, there was no mention of those meetings in her list of ministerial engagements, no civil servants were present and no minutes were taken. Was this a breach of the ministerial code?

Q: Which account to MSPs was wrong – Miss Sturgeon’s or her husband’s?

In his oral evidence Peter Murrell, SNP chief executive and husband of Miss Sturgeon, said her meeting with Mr Salmond related to a ‘Scottish Government matter’ and to ‘Scottish Government business’. 

Yet she has said she felt the meeting regarded party business, as she thought he may be about to tell her he was resigning from the SNP. Whose account is correct, and which one is false?

Q: Has parliament been misled on meetings?

Miss Sturgeon told MSPs she found out about the complaints from Mr Salmond himself at the meeting on April 2, 2018. 

Yet she later admitted in written evidence she met his former chief of staff, Geoff Aberdein, on March 29. He told her Mr Salmond wanted to see her urgently and ‘the matter might relate to allegations of a sexual nature’. 

Was she really in doubt about the subject of the meeting?

Q: Taxpayers were landed with £500,000 bill after judicial review defeat. Could this have been averted?

The Scottish Government’s investigation into allegations about Mr Salmond was declared ‘unlawful’ in January 2019. 

Legal advice published last night revealed senior counsel warned the Government more than two months earlier that the issue of prior contact between an investigating officer and a complainant was a real problem which could have repercussions for the entire case. 

He said he discussed the issue with the Lord Advocate, who shared his concerns. Why was the case not conceded then, when that could have saved taxpayers hundreds of thousands of pounds?

Q: Did a Sturgeon official leak complainer name?

In his evidence, Mr Salmond said the name of a complainer was given to his chief of staff, Geoff Aberdein. 

His claim was corroborated by Duncan Hamilton, QC, who last night wrote to the inquiry to say Mr Aberdein told him a senior Scottish Government official shared the name in April 2018. Miss Sturgeon denied this at First Minister’s Questions last week – was she telling the truth?

Q: Mr Salmond now has corroboration for many of his claims – does Miss Sturgeon?

The evidence by former SNP director of communications Kevin Pringle and Mr Hamilton backs up many of Mr Salmond’s key claims. Mr Hamilton says he is prepared to make his comments under oath. Will Miss Sturgeon swear under oath that their claims are false?

by JACK WRIGHT for MailOnline 

Scottish First Minister Nicola Sturgeon is facing calls from Opposition MSPs to resign after her Government published bombshell legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond. 

Deputy First Minister John Swinney agreed to hand over the papers under threat of a no-confidence vote, and admitted ‘reservations were raised’ by lawyers about the way allegations about Mr Salmond were investigated.

The Scottish Government launched an investigation into allegations of sexual harassment by the former First Minister which was found to be unlawful, unfair and ‘tainted by apparent bias’ because of prior contact between the Investigating Officer and two of the women who complained. 

Redacted legal advice published by Mr Swinney last night showed that SNP ministers were warned they had ‘a very real problem’ defending their legal battle with Mr Salmond more than two months before it finally collapsed.

Advice given to the Scottish Government on October 31, 2018 said there was ‘an extremely concerning’ issue that could gut their entire case – and that the ‘least worst option’ would be to concede the petition.

They wrote: ‘We understand how unpalatable that advice will be… But we cannot let the respondents sail forth into January’s hearing without the now very real risks of doing so being crystal clear to all concerned.’

MailOnline has gone through each document published by the Scottish Government to help you make sense of the political scandal which is rocking the nation.

Nicola Sturgeon is facing calls to resign after her Government published legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond

Nicola Sturgeon is facing calls to resign after her Government published legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond

Nicola Sturgeon is facing calls to resign after her Government published legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond

Nicola Sturgeon is facing calls to resign after her Government published legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond

Nicola Sturgeon is facing calls to resign after her Government published legal advice relating to its botched probe into allegations of sexual harassment by Alex Salmond

Deputy First Minister John Swinney agreed to hand over legal advice under threat of a no-confidence vote, and admitted 'reservations were raised' by lawyers about the way allegations about Mr Salmond were investigated

Deputy First Minister John Swinney agreed to hand over legal advice under threat of a no-confidence vote, and admitted 'reservations were raised' by lawyers about the way allegations about Mr Salmond were investigated

Deputy First Minister John Swinney agreed to hand over legal advice under threat of a no-confidence vote, and admitted ‘reservations were raised’ by lawyers about the way allegations about Mr Salmond were investigated

SEPTEMBER 27, 2018: ‘RISK IS THAT WITNESS STATEMENTS AND INITIAL REPORT BY INVESTIGATING OFFICER WERE NOT SHARED WITH SALMOND’ 

In his letter published to Linda Fabiani, MSP chair of the Committee on the Scottish Government Handling of Harassment Complaints, Mr Swinney said legal advice from September 27, 2018 from senior and junior Counsel ‘sets out an assessment of the merits of the petition brought by Mr Salmond and the Government’s prospects of defending the proceedings at that point’.

In a 13-page document to the SNP administration, the Government’s lawyers were asked for their ‘views on the merits of the petition [brought by Mr Salmond] and the prospects of successfully resisting the judicial review proceedings that have been raised’. 

The assessment explains that some of the grounds of challenge concern the validity and fairness of the Procedure for handling complaints against ministers and former ministers that was put in place in early 2018, while others concern the way in which the Procedure was applied to Mr Salmond. 

In a 13-page document to the SNP administration, the Government's lawyers were asked for their 'views on the merits of the petition [brought by Mr Salmond] and the prospects of successfully resisting the judicial review proceedings that have been raised'

In a 13-page document to the SNP administration, the Government's lawyers were asked for their 'views on the merits of the petition [brought by Mr Salmond] and the prospects of successfully resisting the judicial review proceedings that have been raised'

In a 13-page document to the SNP administration, the Government’s lawyers were asked for their ‘views on the merits of the petition [brought by Mr Salmond] and the prospects of successfully resisting the judicial review proceedings that have been raised’

The lawyers say that ‘several grounds of challenge are in our view ‘time barred’, arguing that ‘complaints about the validity and fairness of the Procedure itself… should have been brought within 3 months of 7 March 2018, being the date on which the petitioner first became aware of the complaints and the investigation’. 

Though they say they believe that ‘the majority of the grounds of challenge are weak and should be capable of being resisted successfully’, they crucially concede: ‘We think that there is a real risk that the Court may be persuaded by the petitioner’s case in respect of the ground of challenge based on ‘procedural unfairness”.

They conclude: ‘We consider that the areas of greatest risk are in relation to the fact that witness statements and the initial report prepared by the investigating officer were not shared with the petitioner’.

In his letter to the Committee, Mr Swinney spun this by saying that the advice ‘confirms that the majority of the grounds of challenge raised by Mr Salmond were assessed at that time as ‘weak’ and were considered capable of being resisted successfully’.

He added: ‘The document confirms that the Scottish Government was justified in defending the judicial review brought by Mr Salmond.’ 

OCTOBER 30-31, 2018: ‘IT MAKES LITTLE SENSE TO CONTINUE TO DEFEND THE INDEFENSIBLE’ 

Writing to the Committee, Mr Swinney said legal advice to the Scottish Government between October 30-31, 2018 demonstrated ‘the development of Counsel’s concerns around the issue of prior contact between the Investigating Officer and the two [Salmond sexual harassment] complainers and whether this could be reconciled with the text of paragraph 10 of the Scottish Government’s Harassment Procedure’. 

After Mr Salmond’s lawyers asked for information from the Scottish Government ‘when, by what means and in what terms the complainers first initiated their complaints’, lawyers advising the Scottish Government raised ‘a discussion between the IO [Investigating Officer] and Complainer B’.

Senior Counsel for the Scottish Government Roddy Dunlop QC of Axiom Associates then raised the prospect of conceding the point on October 31, describing the issue as ‘extremely concerning’.

He warned: ‘The concern that arises is that the answer to the question ‘when, by what means and in what terms the complainers first initiated their complaints’ is that Complainer B, as I understand the position, first made her complaint to Judith McKinnon, Deputy Director of the People Directorate, in December 2017.

Senior Counsel for the Scottish Government Roddy Dunlop QC of Axiom Associates then raised the prospect of conceding the point on October 31, describing the issue as 'concerning'

Senior Counsel for the Scottish Government Roddy Dunlop QC of Axiom Associates then raised the prospect of conceding the point on October 31, describing the issue as 'concerning'

Senior Counsel for the Scottish Government Roddy Dunlop QC of Axiom Associates then raised the prospect of conceding the point on October 31, describing the issue as ‘concerning’

‘That is of concern because it was, of course, Ms McKinnon that was subsequently appointed as the Investigating Officer under the Procedure which is presently under challenge. […] I am told that it was thought that this did not present a problem to Ms McKinnon’s appointment, as she had no prior involvement with the events giving rise to the complaint. 

‘I regret that I do not read the procedure in that way. […] As presently advised I consider that this presents a very real problem indeed. The Petition is resisted on the basis that a fair Procedure was instituted and then followed. 

‘If I am correct… then the Procedure was not followed: rather, an express embargo was ignored in a way which may well vitiate the entire proceedings.’

He went on: ‘A swift decision is going to have to be taken thereafter as to whether (a) the issue is disclosed and any argument based thereon resisted, or (b) the issue is disclosed and the Petition is then conceded thereof. 

‘I can well understand the angst that even suggesting (b) will provoke, but if the proceedings are vitiated then it makes little sense to continue to defend the indefensible.’    

DECEMBER 6, 2018: ‘THE LEAST WORST OPTION WOULD BE TO CONCEDE THE PETITION’

A letter written to Lord Advocate James Wolffe QC on December 6, 2018 stated that: ‘Counsel are of the view that the ‘least worst’ option would be to concede the Petition. They understand how unpalatable that advice will be, and they do not tender it lightly’.

Advice to the Scottish Government by Roddy Dunlop QC and Solicitor Advocate Christine O’Neill warned of ‘substantial further development of the pleadings, accompanied by disclosure of a volume of information about, among other things, the discussions that took place Complainers A and B prior to them making formal complaints’.

They argued that after Mr Salmond’s lawyers introduced new grounds of challenge based on the Investigating Officer’s prior contact with the complainers, ‘with regret, we are now jointly of the view that those grounds are more likely than not to succeed’.

‘At the outset, we recognise the dismay that this advice will cause,’ they wrote. ‘However, we feel it necessary to tender this advice, and the reasons for it, given the views which we have, independently at first and now of consensus, taken in this regard’.

According to Mr Swinney: ‘As the case progressed during November and early December, this issue was identified as the greatest area of risk for the Government’s prospects in the judicial review.’  

DECEMBER 11, 2018: LORD ADVOCATE – ‘THERE ARE GOOD POLICY REASONS TO DEFEND THE CASE’

The Deputy First Minister published documents showing that advice from December 6 was discussed in consultation with the Law Officers on December 11.

It states that in a meeting with Lord Advocate James Wolffe (LA), the top Government lawyer was ‘very clear that [there was] no question or need to drop the case’ and that ‘even if prospects are not certain it is important that our case is heard’.

Senior Counsel Roddy Dunlop QC is said to have ‘made clear that his note was not intended to convey that he didn’t think we have a stateable case… They tested most of the arguments including the appointment of the IO [Investigating Officer] and concluded that we have credible arguments to make’.

It went on: ‘The argument on the appointment of the IO will turn on the extent to which we can persuade the court that there is an credible alternative to the objective reading test of para 10 of the procedure which is that what we had in mind was that the IO should not have had any prior involvement in the ‘matters under investigation’ – i.e. the events being complained about.’

The document also reveals that ‘Counsel followed up the question of what Perm Sec [the Permanent Secretary] knew about the approaches from staff by late November’.

‘While we are clear that there isn’t a procedural bar to her knowing the detail at any point they are constructing an argument to the effect that early exposure to the detail resulted in her being predisposed to find against [the] FFM [former First Minister]’, the emails state. ‘The paper work doesn’t shed much light on that.’ 

Mr Swinney in his letter said that the minutes of December 11 showed ‘that there remained good public policy reasons for continuing to defend the case and benefits in securing the clarity of a judicial finding from the Court’.  

DECEMBER 19, 2018: EVIDENCE OF THE INVESTIGATING OFFICER’S PRIOR CONTACT WITH THE COMPLAINANTS ‘MAKES A DEFENCE OF APPOINTING THE IO UNSTATEABLE’

An extraordinary document presented to the Scottish Government by its lawyers showed that SNP ministers were warned that ‘maintaining a defence of the appointment of the IO may be unstateable’.

That morning, at the start of the first part of the Commission, the Government’s lawyers said that they ‘experienced extreme professional embarrassment as a result of assurances which we have given, both to our opponents and to the court, which assurances have been given on instructions, turning out to be false as a result of the revelation of further documents, highly relevant yet undisclosed’.

New documents not handed to the Government’s lawyers showed that the Investigating Officer had had contact with both complainants.

The first document was a letter dated January 17, 2018 which stated: ‘We met on 16 January 2018 to discuss your experience about the alleged misconduct of a former minister. Following this meeting you submitted a formal written complaint… I have been designated at the IO… The purpose of this letter is to invite you to a meeting to discuss your complaint in more detail’.

A document presented to the Government by its lawyers showed that SNP ministers were warned 'maintaining a defence of the appointment of the IO may be unstateable'

A document presented to the Government by its lawyers showed that SNP ministers were warned 'maintaining a defence of the appointment of the IO may be unstateable'

A document presented to the Government by its lawyers showed that SNP ministers were warned ‘maintaining a defence of the appointment of the IO may be unstateable’

Legal advice warns: ‘This letter suggests that there must have been other communications with Ms A in advance of the meeting of 16 January’.

The second document referred to an email thread which showed that there ‘must have been further contact undocumented in which the IO agreed to meet [complainant] Ms B. It is unclear whether this preceded or post dated the making of the complaint’.

The lawyers told the Scottish Government: ‘The complaint had only just been made. No one had appointed an IO for this complaint. The IO has effectively appointed herself in that regard.

‘It seems inevitable, unless very prompt action indeed had been taken, [Redacted] see Ms B [Redacted] before the complaint was actually made, and accordingly before the IO could have had any legitimate interest in speaking to Ms B’.   

The lawyers then warned: ‘As to the late nature of the revelation, this is unexplained, and frankly inexplicable. Given the nature of the searches described by as having been undertaken, we regret that we simply cannot understand why these documents have been made available only now.  

‘All of this gives rise to two concerns. First, we are now in a position where we think that maintaining a defence of the appointment of the IO may be unstateable. 

‘Given the timescales we are reluctant to take a final view on this, but there is a real risk that we so conclude. Second, we are each in a position which is, so far as dealings with the other side and the court are concerned, close to untenable’. 

According to Mr Swinney: ‘Counsel’s advice of 19 December following the Commissioner hearing that day… reflect[ed] the pressurised atmosphere of the process of identifying and handing over documents.

‘As has been acknowledged in evidence to the Committee, the Scottish Government’s handling of that process was flawed and this is regrettable. This, along with the subsequent Commission hearing on 21 December, was the moment at which the Scottish Government’s case became no longer stateable.’

DECEMBER 29, 2018: LAWYERS OFFICIALLY ADVISE SNP MINISTERS TO CONCEDE SALMOND’S PETITION AFTER ‘WATERSHED’ HEARING 

Legal counsel advised the Scottish Government to conceded Mr Salmond’s petition against its handling of its probe into sexual harassment allegations.

They said: ‘As you are aware, Counsel has offered advice on a number of occasions in relation to the prospects of the Scottish Government’s (SG’s) arguments prevailing in court. This advice has principally turned on Counsel’s views on the appointment and actions of the Investigating Officer. 

‘The key point to note is the ‘watershed moment’ of last Friday (21st December 2018), at which point the SG’s case became, in Counsel’s view, unstateable, given what emerged that day about the degree and nature of the contact between the IO and the prospective complainers prior to their formal complaints having been made.

‘This information was contained in documents which were identified and produced for the Commission and Diligence Hearing last week, and had not been elicited by previous document searches.

Legal counsel advised the Scottish Government to conceded Mr Salmond's petition against its handling of its probe into sexual harassment allegations

Legal counsel advised the Scottish Government to conceded Mr Salmond's petition against its handling of its probe into sexual harassment allegations

Legal counsel advised the Scottish Government to conceded Mr Salmond’s petition against its handling of its probe into sexual harassment allegations

‘While there is no reason to believe that the IO was motivated by anything other than her desire to fulfil her role properly, we recognise that her actions give rise to a perception that there was an unfairness in the operation of the procedure in this case.’

They also note that: ‘The Lord Advocate and the Director of Legal Services share the view of Counsel about the likely prospects of success in defending the decision at Judical Review and the consequent advisability of conceding the petition at the earliest possibly opportunity.’

The lawyers conclude: ‘Having reviewed the material contained in this note, you may conclude that the Scottish Government is in a position where the only sensible and defensible action is to concede the petition and to plan for managing the attendant reputation and legal risks. The risks associated with proceeding to defend the Judicial Review could appear to be greater.’

According to Mr Swinney: ‘This was a shared view of both internal and external legal advisers. The case was reviewed and conceded quickly after this, taking account of further internal legal advice on the terms of the concession, which we are also sharing.’

DECEMBER 31, 2018: LORD ADVOCATE RECOMMENDS ‘CAREFUL’ CONCESSION OF SALMOND’S PETITION

Lord Advocate James Wolffe told SNP ministers that ‘the concession should be narrowly framed to reflect accurately and carefully the legal basis upon which Ministers are conceding the petition; and the basis of the concession should be explained as fully as it can be’.

‘It may be unlikely that it will be possible to avoid the phrase ‘apparent bias’ being used at all, in all communications (including with the court),’ Mr Wolffe went on.

‘However, the use of that phrase should, in my view, be minimised, and should always be coupled with an appropriate explanation, intelligible to a lay person, of what that means – ie that the process must be seen to be impartial as well as actually impartial – and what it does not mean (ie that the process was actually tainted by bias).’

Writing yesterday, the Deputy First Minister insisted: ‘The documents published today demonstrate that the Scottish Government did not ignore legal advice in continuing to defend the judicial review, contrary to the terms of the Scottish Ministerial Code or the Civil Service Code. 

‘The documents demonstrate that there was no ‘malicious’ intent against Mr Salmond. The Scottish Government was within its rights to defend a judicial review raised against it by Mr Salmond and to continue to defend it whilst it still had a stateable case. There were good public policy reasons for continuing to defend the case and to seek a determination from the Court. 

‘Once it became clear that the Scottish Government no longer had a stateable case after the Commission hearings in late December 2018, the Government quickly reviewed the position and conceded the case. 

‘The view that the Government no longer had a stateable case was agreed by both internal and external advisers.’ 

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