Alex Salmond inquiry: Why the Scottish government must reveal its legal advice over complaints procedure – Alex Cole-Hamilton MSP

The judicial review wasn’t about whether Salmond was guilty, but rather if due process had been followed by the government.

Just after New Year in 2019, the government's case collapsed and they were forced to concede on grounds of apparent bias. It turns out that a senior official they’d put in charge of the investigation had had substantial, prior contact with the complainers before they lodged their allegations, in contravention of the complaints-handling procedure.

That misstep cost the taxpayer well in excess of £500,000 and left the women at the heart of all of this exposed, denying them any chance to have their complaints properly considered by the government.

The WhatsApp exchanges between Alex Salmond and Nicola Sturgeon presented in the First Minister’s evidence to the parliament's Salmond inquiry shed some light on what happened.

Sent shortly after Salmond learned of the government investigation against him, a number of key points stand out.

Salmond argued that the process had been tainted, he threatened legal action from the start. But above all, they suggest several roads not taken where the government could have settled questions of legality and restarted the complaints handling process without all the trauma that went with the judicial review.

Salmond launched the review in early September, but as early as June 7 he had told the First Minister over WhatsApp that his senior counsel was confident such a challenge would be a slam dunk win for Salmond. If that happened the government would be humiliated, billed for the cost of the case and any hope of proper consideration of the complaints by government would lie in ruins.

Given the real and present danger of legal action and the former First Minister’s bravado, the government had to have taken its own legal advice around that time. I can’t believe that, given Salmond’s boasts (and the actual outcome of the review), such advice would have been wholly different from that offered by Salmond’s lawyers.

This is why we need to see it. If the government were told that they would lose the review if Salmond launched it, why on Earth did they proceed with trying to fight it?

Salmond had suggested on three occasions a test of the lawfulness of the handling of these complaints through legally binding arbitration. He obviously wanted as much of this conducted in private as possible (and at lesser cost), but arbitration would have had an advantage for the complainers as well.

The judicial review defeat left them denied a fair hearing and exposed to public intrigue, whereas arbitration could have allowed a restart of the complaints process and a chance of a fair hearing following a proper investigation.Yet the government pressed on with the winner-take-all option of a judicial review it very likely knew it would lose. It would have been easier just to set fire to half a million on the front step of St Andrew’s House.

Alex Cole-Hamilton is Scottish Liberal Democrat MSP for Edinburgh Western

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