Alex Salmond could appear in front of MSPs next week to discuss harassment probe

The former first minister has been invited to give his account of events to MSPs next Tuesday.

But in a letter to the committee, Salmond's lawyer has warned that it could be impossible for the ex-SNP chief to tell the "truth, the whole truth, and nothing but the truth" as the Lord Advocate has warned that he could be committing an offence if he mentions "key material from both the civil case and the criminal case".

David McKie from Levy & McRae also expresses concerns over the safety of giving evidence in person, as Salmond has an underlying health condition.

In her invitation, the committee's chair, Linda Fabiani, promises the committee will give "high priority to protecting your health and wellbeing during the pandemic."

She warns that the inquiry is fast running out of time: "On the substance of your evidence, the Committee appreciates that you would wish to access evidence from the criminal trial in order to go into more detail when you appear before the Committee.

"However, the Committee is now in the position where if it does not complete evidence taking in the very near future it may not be able to report to Parliament in advance of purdah rules coming into force.

"The Committee must fulfil the task that Parliament has set it and that must include reporting its findings on this important inquiry before the Committee is disbanded in advance of the general election. On that basis 19 January is the date that is being offered to you."

Salmond had the findings of the government’s investigation set aside in January 2019 by a judicial review.

Much of what he might tell MSPs was revealed over the weekend, after the publication of details from his submission to a separate investigation into whether or not Nicola Sturgeon broke the ministerial code. 

He accused his successor of misleading parliament over meetings between the two, calling her evidence “simply untrue” and “untenable”.

One key allegation in Salmond’s submission is that ministers continued fighting his judicial review long after they knew it was likely to end in defeat. The Scottish Government was ordered to pay his costs, resulting in a £512,000 bill for the taxpayer.

On Tuesday, Scotland’s most senior civil servant repeatedly refused to say when the Scottish Government was told it would probably lose the legal challenge.

Permanent Secretary Leslie Evans also confirmed she knew that Judith Mackinnon had spoken to the complainers before she was appointed as investigating officer.

That prior contact was responsible for the collapse of the government’s court case, as it showed the investigation had been tainted by bias and was therefore unlawful.

Details of the relationship between Mackinnon and the two women were only revealed late on, after Salmond’s lawyers went through a special procedure to force the government to hand over more papers. 

Liberal Democrat MSP Alex Cole-Hamilton said that, given the key piece of evidence was the last to come out, it looked as if the Government was trying to hide the “smoking gun”.

He told Evans: “I understand entirely what you say about the mega-haul of data, that an organisation as big as the civil service possesses, but with respect this is not some constituent grumbling about hospital waiting times.

“The evidence that was produced incrementally in the latter days of December in 2018 would ultimately be the smoking gun on which the failure of the judicial review collapsed.

“The optics of that look pretty bad. In a way, a reasonable person might look at that say that actually the Government had something to hide, or were trying to hide.”

Evans replied: “I can see why that might be construed, and indeed I believe that is what has been alleged in some circumstances. That is not the case. It really is not the case. 

“I absolutely take the point that the speedy and effective sharing of information in any circumstances is important, nothing more so than in this one, and indeed you will have seen  the speed at which I took a decision very rapidly after that information came to light."

Asked about the contact between Mackinnon and the complainants, Evans said she was "aware that there had been some contact I was not aware of it and not of the nature that was subsequently brought to bear in some of the documents that were presented.”

Redacted and paraphrased documents released by the government reveal that senior, external lawyers threatened to resign if the case was not conceded to Salmond at some point after they were made aware of the prior contact between the investigating officer and complainants.

Evans insisted that the decision to continue to defend the case despite evidence of prior contact was based on “composite advice” from inside and outwith the Scottish Government.

Asked three times by Scottish Labour’s Jackie Baillie when senior external counsel first advised that the government was unlikely to win the case, Evans refused to say, citing legal privilege.

“It would have been remiss for me to only have listened to one voice; at every stage, the legal advice that I was provided was complete and thorough and from a variety of sources and that is quite right and quite appropriate,” Evans said.

She added: “I listened carefully to all legal advice from all sources at every stage – every single stage – of the procedure, not just during the judicial review.

“But I had a really careful and really important role and responsibilities to undertake.”

Evans also defended the decision to pass sexual harassment complaints on to the Crown Office, despite the women involved saying they did not want to go to police.

Evans said she followed the “considerable advice” she was given.

“It was not an easy decision to make at all, I was weighing up two competing, difficult and very, very important sets of circumstances and I didn’t take the decision lightly,” Evans said.

She added: “It was decided that we had to balance the legal advice given to me – as the person who was going to take this decision – and the careful consideration of the views of the complainants.

“This was very carefully weighed up by me.

“I was particularly concerned and took some time to find out if we could possibly allay some of the complainers’ concerns about a potential referral to the police.

“But of course I had to also bear in mind the potential criminality, and the advice I was being given on this about the potential criminality of these allegations.”

Evans continued: “I was very mindful and, to be honest, remain very mindful, about the impact of them and their loss of privacy and their concerns and anxieties.

“I’m very empathetic.

“Nevertheless – as the procedure sets out – there may be occasions on which those have to be weighed up against the potential of criminality and criminal proceedings.”

Salmond was acquitted of sexually assaulting nine women while he was first minister.

Meanwhile, John Swinney has rejected an appeal to formally widen the remit of the official tasked with investigating claims Nicola Sturgeon broke the ministerial code. 

Labour, Tory and LibDem members of the Holyrood inquiry had written to the deputy First Minister urging the expansion of the inquiry.

Sturgeon triggered the inspection in January 2019 by referring herself to the independent advisers on the Ministerial Code, after it was claimed she had broken the guidelines by failing to swiftly declare the three meetings and two phone calls with Salmond about the harassment complaints.

Scottish Government rules say that when discussing official business “any significant content” should be reported back to private offices.

James Hamilton, a former director of public prosecutions in Ireland, has been tasked with investigating the First Minister’s actions.

MSPs asked Swinney to expand the investigator’s remit to include allegations that Sturgeon misled Parliament about when she first knew that the government was investigating complaints.

In their letter, the MSPs said that as Hamilton is “engaged in a quasi-judicial process, he cannot indulge in mission creep and that the remit may only be formally expanded by an official directive from your government".

A Scottish Government spokesperson said: “The Deputy First Minister already confirmed to parliament in November, in response to a parliamentary question, that the James Hamilton inquiry could look at any breach of the ministerial code. We will not prejudge that process.”