John Swinney had admitted the legal advice reveals concerns about the unlawful investigation of Alex Salmond but claimed there were “good public policy grounds” to not concede the case for another three months.
After agreeing to hand over the “key” legal advice following the threat of a no-confidence vote, the deputy first minister said government lawyers “have not identified any documents” that support Mr Salmond’s claim the government deliberately delayed conceding the case in the hope a criminal trial would “overtake” his judicial review.
The Scottish Government launched an investigation into allegations of sexual harassment by the former first minister but it was found to be unlawful, unfair and “tainted by apparent bias” because of prior contact between the investigating officer and two of the women who complained.
Although the investigating officer, Judith Mackinnon, said under oath that she had always been open about the contact with complainers, Scottish Government lawyers purportedly did not learn of it until October 2018, nine months after the investigation began.
It took the Scottish Government until January 8 for the government to concede the case – a week before the full judicial review was due to start.
The former first minister, who was awarded maximum legal costs of £512,250 in part because of the late concession, has alleged that the government had hoped a looming criminal trial would “ride to the rescue” and prevent its unlawful investigation suffering a “cataclysmic” civil court defeat.
In November 2020, the Scottish Parliament twice passed motions demanding the government publish all the legal advice it had received about Mr Salmond’s judicial review.
After a motion of no confidence was lodged on Monday in the deputy first minister over the government’s refusal to comply with the will of parliament, Mr Swinney agreed to hand over the “key” legal advice to the Holyrood inquiry into the botched investigation.
In a letter ahead of the release of the legal advice, Mr Swinney acknowledged lawyers had raised “reservations” about the issue of prior contact.
But he insisted there were “good public policy arguments and reasonable grounds for the Government to continue to defend the judicial review and to seek a determination from the Court on the matters raised, until the events of late December 2018”.
That December, a private civil court commission was held ahead of the planned court hearing as part of efforts by Mr Salmond’s legal team to get the government to hand over evidence.
Mr Swinney added: “During his evidence session with the Committee on Friday, Mr Salmond also raised an allegation that there was a desire within Government to seek to sist [pause] the judicial review once the issue of prior contact with the complainers was identified.
“I have asked officials to review the relevant documentation, but they have not identified any documents which support this allegation.”
Mr Swinney, who is leading the government’s response to the committee after First Minister Nicola Sturgeon recused herself, suggested he agreed to release the legal advice over concern that the allegations “could impact negatively on public confidence in the Parliament, Government and even our justice institutions.”
He said the legal advice would be provided to the Committee on the Scottish Government Handling of Harassment Complaints on Tuesday afternoon – after they have questioned the Lord Advocate, James Wolffe; the head of the Crown Office and the Scottish Government’s chief legal advisor.
Mr Wolffe rejected criticism of the Crown Office as he appeared before the committee on Tuesday morning.
He said: “Any suggestion, from any quarter, that the Crown’s decision-making has at any time been influenced by irrelevant considerations or improper motivations would be wholly without foundation.
“Insinuation and assertions to the contrary are baseless.”