NICOLA Sturgeon denies her Government should have conceded the civil legal case Alex Salmond brought against it at an earlier stage.
The First Minister was questioned on the advice the administration received from senior lawyers on the former First Minister’s judicial review from September to December 2018.
Correspondence from senior counsel dated October 31, 2018 and published on Tuesday suggested Roddy Dunlop QC had serious reservations about the Government’s chances of success.
His assessment was based on his knowledge that there had been prior contact between the official carrying out the investigation of the complaints made by two civil servants against Salmond.
“It would be wrong for me to suggest that this revelation is anything other than an extremely concerning one,” he wrote in his letter, adding that he had informed the Lord Advocate of his view.
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Salmond last week claimed the Government should have conceded the case at this point and that it was a breach of the Ministerial Code that the First Minister did not as the decision lead to a waste of public funds.
The First Minister has denied breaching the Ministerial Code and told MSPs yesterday she was required to take the advice of the Lord Advocate who was advising that the Government could still mount a successful defence.
She was also asked by Tory MSP Murdo Fraser why the Government did not then concede the case on December 6 following more legal advice from counsel that “the least worst option” would be to concede then – a matter the Government did not do until January the following year.
He challenged Sturgeon on this, saying: “You were risking public funds in continuing with the action.”
The First Minister told him: “I think every time a Government defends a legal action it is risking public funds, because there is never a guarantee you are going to be successful.”
She added: “My understanding is that much of what went really wrong in the case, catastrophically wrong ... was in that later stage of December, when it became clear, I believe not intentionally, that there was information and material that had not hitherto been disclosed.”
But she said: “Up until as late as December 11 it was the opinion of law officers we had a stateable case with credible arguments.”
During their exchanges the First Minister rejected suggestions that the Government did not take the advice of senior lawyers in conceding Salmond’s judicial review petition at a sufficiently early stage.
Fraser highlighted some advice which warned “the trumpeting would be far louder” if the case proceeded to a written judgment, saying the “least worst option would be to concede the petition”.
Sturgeon said: “The charge that has been made against me is that I wilfully allowed a judicial review to proceed against the legal advice, therefore I broke the Ministerial Code.
“With respect, as you now know, I was acting in accordance with the views of the law officers, not against.
“We thought we had a stateable case, counsel was not arguing at that stage – that changed later – we thought we had credible arguments to make, and we were also taking account of that wider interest in getting a determination on the many grounds of challenge that Alex Salmond had made to both the procedure and its application.”
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Labour MSP Jackie Baillie spoke about “how frustrated” she had been as a member of the committee as they tried to get sight of the Scottish Government’s legal advice – which was released on Tuesday after the Greens joined the other opposition parties in saying they would back a Tory no confidence motion in Deputy First Minister John Swinney if the files weren’t made available.
“I don’t think I have felt quite so frustrated in my 22 years of being on parliamentary committees as with this one,” she said. “We have waited for information from the Scottish Government, the stuff we have received has been partial and late.
“The legal advice has taken two votes in Parliament and a motion of no confidence in John Swinney before we saw it last night at six o’clock.
“And there is information missing.”
Baillie added: “We have waited till the 11th hour for the legal advice, we get partial legal advice.”
She asked Sturgeon: “Do you understand the frustration of the committee? Do you understand that it looks as though the Government doesn’t want to give us critical information?”
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The First Minister said there had been “really complex legal issues” behind the provision of legal information to the committee.
She said she would “reflect seriously” on what Baillie had said but that there were concerns about the release of the legal documents.
The First Minister said: “I get some of the frustration, I share some of the frustration.”
She added: “Sitting here right now I am glad you have got the legal advice so that I can talk about it openly.”
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