The Scottish Government has been told to publish its judicial review legal advice and prove that it didn't use public funds to "pursue a vendetta" against Alex Salmond.

MSPs voted to back a Tory motion today demanding ministers publish all guidance obtained in fighting the case that ultimately cost the taxpayer more than £600,000.

The former First Minister defeated the Scottish Government in January 2019 when they conceded they had acted unlawfully while investigating harassment claims against him. 

However, despite requests from the Holyrood committee investigating the collapse of that case, the government has been unwilling to waive legal privilege. 

Even though they lost by 63 to 54, they don’t have to publish the advice, as the vote is non-binding. 

But, speaking after the defeat, John Swinney said he would "respect the decisions taken by parliament" and would "consider the implications of the motion" with colleagues. 

During the debate, Tory MSP Murdo Fraser, who sits on the Holyrood committee probing the botched handling of harassment allegations made against Salmond, said spending parliamentary time on the motion had  “only been made necessary because of the failure of the Scottish Government to respond to consistent calls from members of the committee speaking unanimously and on a cross-party basis for publication of vital information that the committee believes is essential to allow us to do our work”. 

Fraser told MSPs that something had gone “very far wrong with the Scottish Government's legal case”.

He said: “We know that Mr Salmond had counsel’s opinion which said that his prospects of success in that case were substantial. And we know that the Scottish Government conceded the judicial review admitting Mr Salmond was correct. And we know that the award of expenses paid to Mr Samlond, over £500,000 of taxpayers money was at the highest level available in these circumstances.” 

Fraser pointed out that the Scottish Government had already published their own legal advice on a number of occasions, including the contaminated blood scandal case, the Scottish child abuse inquiry and the Edinburgh Trams inquiry.

He said the decision not to publish the legal advice was a “matter of political choice”.

“If it is the case that the legal advice obtained by the Scottish Government, either in-house or externally from counsel, said they had a good case to defend then lessons need to be learned as to why such poor advice was offered to ensure no repetition in the future. 

“The alternative explanation is much more sinister and concerning, because Mr Salmond’s allies believe that the legal advice obtained by the Scottish Government told them that the judicial review case should not be defended as there was very little chance of success. 

“And if that is indeed what the legal advice said, it means that a decision was taken at the top of the Scottish Government to go and defend the case regardless. A decision which in the light of what we now know was both irresponsible and reckless. 

“More worrying still is the accusation that that decision was made on political grounds. And in effect the Scottish Government were pursuing a vendetta against the former First Minister and using public funds to do so. That claim may well be nonsense. But it is impossible for members of the committee or indeed the public as a whole to reach a view on which of these explanations is the correct one in the absence of the legal advice.” 

Responding for the government, John Swinney legal professional privilege was “part of the normal operation of the Scottish Government.”

“It is important that the legal advice which ministers and their officials receive is full and frank and not affected by concerns about it subsequently becoming public.”

The deputy First Minister said the government had shared many documents with the committee already. 

"Maintaining legal professional privilege has not prevented the government from providing the committee with over a thousand pages of relevant material. Scottish Government witnesses have provided over 14 hours of oral evidence to date," he said.

“We are working to provide more material to the committee and that set our intention to initiate legal proceedings seeking to allow the least of further documents that we believe that committee should receive.”

He added: “The government is frequently involved in litigation and decision-making as part of normal good government. 

"It is crucial that decisions can be taken “with the benefit of full and frank legal advice. If the government were to waive its privilege in this case, I would be concerned that in any future high profile litigation involving the government, Ministers might not be able to benefit from advice given on a full and frank basis should there be a fear that advice might be published.” 

Labour MSP Jackie Baillie said the legal advice and the judicial review was central to the committee's remit.

"It's the remit that the SNP also agreed with. Understanding the legal advice given to the Scottish Government is therefore key to determining whether they pursued the judicial review appropriately or whether they actually wasted public money. 

“Let's remember it was half a million pounds given to Mr Salmond and his lawyers. And that's on top of the cost of external counsel for the Scottish Government at £118,000. Never mind the cost that we’ve discovered of a whole array of officials meeting in some cases daily, at least 10 to 12 of them lawyers. Another group meeting three times a week involving comms people policy officials and special advisors and then of course the 17 meetings with counsel. 

“A huge investment of public money just on this one case.”

SNP MSP Bruce Crawford accused the Tories of playing politics.

He said the opposition submitted the motion because they knew full well the government’s position. 

“Their motive? An attempt to politicise the process, and undermine the credibility and position of the Scottish Government, no matter how futile that might be.

“To exacerbate matters, this motion’s being brought forward during the Coronavirus emergency, that’s now killed over 47,000 people in the UK, and very sadly claimed the lives of almost 400 people yesterday and in the last 24 hours 50 in Scotland alone.”

Green MSP Andy Wightman said it was wrong to say that legal privilege always applies. “It can be overruled by public inquiry, it can be waived under FOI, where considered appropriate by ministers they can waive it under the code," he said. 

“I'll be particularly interested in how SNP backbenchers vote,” he added. “Do they stand up for their parliamentary colleagues on the committee and join with all other parties to support the committee in its endeavours? Or do they defy their parliamentary colleagues and side with the government who are refusing to release this advice and who are, as I say, an interested party.”