Emails from lawyers reveal how Alex Salmond won judicial review against Scottish Government
Emails and documents produced by the former first minister and his legal team expose a litany of failings by the Scottish Government in its handling of harassment complaints against Alex Salmond.
The new documents have been released by the Scottish Parliament’s harassment committee, which is examining how the Scottish Government came to concede a judicial review action that ultimately cost the taxpayer more than £500,000 in legal costs.
The release will increase already mounting pressure on the Scottish Government to release its own legal advice on the matter.
The emails, from Mr Salmond’s lawyers at Levy and McRae to permanent secretary Leslie Evans, detail numerous failings on the side of the Scottish Government as it undertook its investigation into allegations of sexual harassment against the former first minister.
Within the emails include the Scottish Government’s refusal to allow Mr Salmond’s legal team to see the investigation report into the allegations and a refusal to accept arbitration as a way to solve the dispute.
The disagreements ultimately led to Mr Salmond launching and winning legal action against the Scottish Government due to “apparent bias” caused by the investigating officer’s (IO) contact with complainers prior to being appointed in their role.
As early as April 23, a month after the initial complaints had been raised to the former first minister and four months before they became public, Mr Salmond’s legal team believed it would not be possible for the harassment complaints procedure to be applied fairly.
At this point, the former leader of the SNP’s legal team highlighted issues that were raised in the judicial review petition, including the fact Mr Salmond was not a minister when the procedure was developed, that he would not be given access to witnesses or documents, and concerns over the role of the IO.
Offering mediation as a solution, the email states: “As a result of these difficulties, the procedure cannot be applied in a manner which is legal and fair.”
In a follow-up email three days later in which mediation had been rejected by the Scottish Government, Mr Salmond’s lawyers bring up the potential of judicial review action for the first time.
The email states that “most of the factual content of the allegations is disputed” and labels the procedure in which Mr Salmond would “have no say” in how evidence in his defence would be gathered as “patently unfair” by “any standard”.
In another letter, sent by the former first minister’s legal team on May 8, 2018, the scale of Mr Salmond’s legal concerns about fairness become clear.
His lawyers state that up to this point, they have had no access to statements from the complainers, have not had access to the preliminary report of the IO, have been denied the chance to consult Mr Salmond’s records and diary, were not provided with a witness list, were banned from contacting current civil servants, and were not sure they would have access to the evidence even after a decision on the allegations were made.
On June 26, 2018, Mr Salmond’s legal team make a formal offer of arbitration that is rejected by the Scottish Government.
In response to the rejection, Levy and McRae write on July 9 they “fail to see the logic of that position” and the “disputes on competency and illegality will have to be resolved one way or another”.
They write: “If you are confident in the legality of the process, then you have no reason to reject arbitration.”
According to one email from Mr Salmond’s lawyers sent on July 13, the Scottish Government ‘misunderstood’ the scope of the arbitration and claimed it would involve “negotiations on the terms on which the procedure will apply to our client”.
Another email, sent on July 20, quotes the Scottish Government, which states: “This is an investigation of serious complaints made by civil servants involving a former minister.
“Submitting the process to an external decision maker would not be appropriate."
Responding, Mr Salmond's team write: “We cannot accept that the issues in an arbitration could not be separated out from the substance or content of the complaints.
"It is commonplace for the courts to deal with challenges of the sort we have described taking the complaints or allegations at face value.
"An arbitrator would deal with these matters in exactly the same way as a judge dealing with them in a judicial review.”
The same email also highlights the “clear conflicts of interest” of the IO and the fact several allegations “occurred several years ago”, which increases the chance of “prejudice … from the procedural defects”.
On August 22, Mr Salmond received the findings from Ms Evans to which his legal team reminded the Scottish Government their view was that it was “unlawful”.
The email states: “We have repeatedly explained the basis of that advice. but without any substantive or persuasive response.”
The same day, Mr Salmond’s legal team wrote to Nicola Sturgeon warning her of the “duty of confidentiality" of the report and the public interest in keeping the investigation private.
However, on August 23, Levy and McRae are given fewer than three hours’ notice the Scottish Government is going to make the investigation public, and scramble to block its publication.
In an email to Ms Evans, they state: “You have been placed on notice by us on a number of occasions of the procedural incompetence of the process and the requirements for confidentiality throughout.
"You have either ignored or failed properly to ignore these concerns.
"Standing the decision intimated yesterday, he [Mr Salmond] has instructed senior counsel to draft judicial review proceedings.”
Mr Salmond’s legal team then turned to the courts to block the release of the statement, but the former first minister was forced to publicly comment on the allegations after the Daily Record contacted him about the fact he was under police investigation.
His response made public the legal dispute going on behind closed doors.
The inquiry continues.