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by Louise Wilson
17 November 2020
Lord Advocate refuses to ‘pre-empt’ decision on release of legal advice


Lord Advocate refuses to ‘pre-empt’ decision on release of legal advice

The Lord Advocate and Permanent Secretary have shed some light on the changing legal advice received by the Scottish Government in relation to the judicial review of the handling of harassment complaints against Alex Salmond.

But the Lord Advocate refused to say whether he had been asked to publish the legal advice in full, despite MSPs voting for this two weeks ago.

Deputy First Minister John Swinney is currently considering the vote of the parliament and James Wolffe said it was “not appropriate for me to pre-empt the outcome of that process”.

However, both he and Leslie Evans said the Scottish Government’s position on the judicial review, informed by legal advice, changed after the extent of contact between the civil servant instructed to investigate the complaints against Salmond and the complainers became clear.

Throughout October and November, the government was confident of its prospect for success in the review, based on a defence using its interpretation of the procedure on handling harassment complaints involving current or former ministers.

But when new documents surfaced on 19 December, “it became clear that prospects had changed,” the Permanent Secretary told the Holyrood committee tasked with investigating the botched process.

She said: “Although on the face of it, the content of these documents was administrative in nature, their appearance at this stage in the proceedings cast doubt on the capacity of the Scottish Government to clearly evidence and explain the nature of every contact, and contradicted earlier assurances. It was at this point that it became clear that prospects had changed.

“Whilst there was nothing to suggest that the investigating officer did not in fact conduct her duties in an entirely impartial way, the Scottish Government concluded that the totality of interactions between the investigating officer and complainers were such that the test of apparent bias was met.

“As a result, and in line with my responsibilities as principal accountable officer, I took the decision to concede the judicial review very rapidly – in fact within a matter of days.”

Regarding legal considerations, the Lord Advocate said: “On the factual information available in early December, the first or second week of December, the government was content that it could properly defend the apparent bias argument.

“Events then moved forward, and we come to the Commission and two documents were disclosed which disclosed additional contact between the investigating officer and the complainers which hadn’t previously been factored into the consideration. That led, as is entirely appropriate, to a review of the government’s position and ultimately to the concession of the case.”

Prior to this, the Scottish Government had planned to mount its defence by arguing its interpretation of paragraph 10 of its internal complaints handling procedure.

Paragraph 10 reads: “In the event that a formal complaint of harassment is received against a former Minister, the Director of People will designate a senior civil servant as the Investigating Officer to deal with the complaint. That person will have had no prior involvement with any aspect of the matter being raised.”

Prior contact between the investigating officer and complainers was the reason given when the Court of Session ruled the process had been unlawful, and ultimately to over £500,000 of taxpayers’ money being paid in legal costs to Salmond.

But the Lord Advocate explained the government interpreted that paragraph as referring to contact only in relation to the events being complained of.

He told the committee: “A natural reading of those words is the ‘matter being raised’ in the complaint, i.e. the subject matter of the complaint, and on that view the investigating officer – who as I understand it was not in the Scottish Government at the time of the events that were being complained about – was unproblematic in terms of the procedure.

“In terms of the interpretation of the procedure, there was clearly an issue of interpretation of the procedure, but it [the government] was entirely content to argue its interpretation before the court and to have the court adjudicate on that question.”

However, Wolffe repeatedly declined to answer questions on the exact nature of advice given to government or if he was involved in the judicial review himself. He cited the Law Officers’ Convention which prevents legal advice given to government being disclosed.

And Leslie Evans, when asked whether her insistence that she “acted on legal advice” throughout the process mean she had acted in accordance with said advice, also declined to answer.

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