THE Scottish Government believed they had a strong defence when Alex Salmond took them to court over their investigation into allegations of harassment.
It was only in December 2018 - seven months after the judicial review commenced - that they realised they'd have to concede the case.
They ended up paying the former SNP leader more than £500,000 in expenses after a judge ruled their investigation was “unlawful”.
The Government’s permanent secretary, Leslie Evans, told the Holyrood committee probing the botched inquiry that the prospects of success in the case had been "kept under regular review by the Scottish Government" during the judicial review brought by Salmond.
However, that changed when documents were identified on December 18 describing the "contact between the investigating officer and those who had raised concerns".
The permanent secretary 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."
Evans added: "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."
Evans said that "in conceding, the Scottish Government acknowledged that one part of the internal procedure should have been applied differently".
She added she "apologised to all concerned for this procedural failure" and stressed the "commitment" to learn from a review of what happened, which is being carried out by Laura Dunlop QC.
In an earlier session, the Lord Advocate said the documents were "damaging in a number of respects" of the Scottish Government case.
Scotland’s top law officer said: "The emergence of these documents at that late stage also contradicted assurances which counsel had given to the court and their counterparts about the disclosure of documents."
Earlier this month, MSPs backed a motion calling for the Scottish Government to waive its legal privilege and "publish all the legal advice it received".
Though the vote was non-binding John Swinney said he and the Cabinet would "consider the implications".
However, the advice has not yet been released.
Wolffe was asked if the Scottish Government had asked him to release his legal advice.
He told MSPs: "I don't think it would be right for me to discuss what is an ongoing process that the Government is engaged in, and which ultimately will result in a collective decision by Ministers."
Asked by Labour’s Jackie Baillie whether anybody had contacted him, he said: "I am clearly aware of the process."
Asked the same question again, he replied: "I don't think it would be consistent with the collective nature of the decision making process for me, at this stage, when it is an ongoing process, to get into the ins and outs of internal discussions."
Speaking afterwards, Scottish Tory spokesman on the Salmond inquiry, Murdo Fraser MSP, accused Wolffe of stonewalling.
He said: "The Lord Advocate should have come to Parliament and given clear answers to straight questions. Instead, he decided to stonewall.
"In police interviews, suspects frequently say 'no comment'. The Lord Advocate had his own version which was to cite law officer convention.
"Following the SNP's refusal to respect the will of Parliament, today's lack of good faith reconfirms the contempt they have for this committee and by extension the public.
"We still do not know whether the SNP Government has asked the Lord Advocate for this information to be released."
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