Last week, we wrote about Liam Fox’s suggestion that Parliament might have a legitimate role to play in the political drama unfolding in Scotland, because the entire Home Civil Service, of which the Civil Service in Scotland is part, is answerable to it.
Yesterday, David Davis justified his own intervention in the Salmond/Sturgeon saga on different grounds: that due to shortcomings in the way New Labour set up the Scottish Parliament in 1998, he was able to speak with the protection of parliamentary privilege where MSPs were not.
Alex Massie dismisses his calls for an even more powerful Scottish Parliament as ‘concern trolling’, and one must hope so. But regardless of his motives, his speech touched on several different dimensions of this complex and confusing story. What did he say?
Initial complaints
For the benefit of those who haven’t been following the story in granular detail, Davis set out just how the Scottish Government first botched the investigation of allegations of sexual misconduct against Alex Salmond.
He highlighted how the former First Minister was investigated under a brand-new set of procedures. That these new system was lopsided, as it applied retro-actively to politicians but not to civil servants. How the Head of Propriety and Ethics in Whitehall “expressed discomfort” at this, but received no reply. But most importantly:
“However, the Scottish Government also ignored its own policy, the new policy and appointed an Investigating Officer who it emerged had had prior contact with the complainants. And not just any contact. A potential complainant was asked for their input on the draft procedure before they had formally made their complaint.”
One does not need to buy Salmond’s allegations of a conspiracy to see why he might be suspicious of a stitch-up.
Legal challenge
As we know, the former First Minister then brought a judicial review against the policy. He won, and was awarded costs “at a punitive level reserved for defences conducted ‘incompetently or unreasonably’, in Davis’ words.
When the Scottish Government was finally compelled, by the threat of a vote of no confidence in John Swinney, to publish its legal advice on the case, it emerged that it had insisted on fighting on for months against the advice of its own lawyers. Indeed, that it appeared to have actually misled its counsel, and caused them “extreme professional embarrassment” in the process. Davis:
“This was a government that actively withheld important, relevant information. In one case a critically relevant email was actively removed from an information bundle that was going to the court and which had already been approved by government counsel.”
The Scottish Government has yet to provide a compelling explanation for why the decision was made to fight on, at such huge public expense, when the lawyers insisted their case was doomed. The meetings where the decisions were taken were allegedly, and remarkably, not minuted. So again, one can see why Salmond might think they were hoping to string things out long enough that events overtook it and the story was eclipsed by his criminal trial.
The role of the Lord Advocate
Davis zeroed in on the role of the Lord Advocate, the Scottish equivalent to the Director of Public Prosecutions, who heads the Crown Office. Conspiracists have focused on the fact that the Lord Advocate sits in the Scottish Cabinet, and Davis too played up ‘separation of powers’ concerns. First, in relation to the above-mentioned court case:
“In one case a critically relevant email was actively removed from an information bundle that was going to the court and which had already been approved by government counsel. I don’t know who took that email out – I have it here. I don’t know who took it out, I don’t know who gave the instruction. But in my view the removal of that document would be a summary dismissal offence, and possibly a criminal offence. At the very least it would be in contempt of court. And yet over his three evidence sessions the Lord Advocate, the Chief Law Officer of Scotland, did not see fit to mention this crucial incident to a Parliamentary committee trying to get to the truth.”
Second, he highlighted how the Crown Office intervened to censor evidence being given to the Holyrood committee investigating the Scottish Government’s mishandling of the initial complaints. This was allegedly to protect the identity of the complainants, yet when the Spectator published the evidence online it revealed that the redacted passages referred instead to allegations that Nicola Sturgeon broke the ministerial code:
“But when The Spectator went to court to secure the publication of that evidence, the Crown Office made no objection whatsoever to the paragraphs it bullied the Holyrood inquiry to redact. This leaves an absurd situation where the inquiry cannot speak about evidence that is freely available to anyone with an internet connection. The redactions are clearly therefore not designed to protect the complainants. They are designed to protect the First Minister from accountability to the inquiry.”
The Crown Office’s intervention meant MSPs could not question witnesses about the contents, even though they were publicly available online.
The SNP
Perhaps the most serious allegation, however, was Davis’ claim to have new evidence, passed to him by a whistleblower, that senior figures in the Scottish National Party seem to have been playing an active role in trying to create a case against Salmond:
“…these texts show that there was a concerted effort by senior members of the SNP to encourage complaints. The messages suggest that SNP Chief Executive Peter Murrell coordinated Ruddick and Iain McCann, the SNP’s Compliance Officer, in the handling of specific complainants. On the 28th September, a month after the police started their investigation of the criminal case, McCann expressed great disappointment to Ruddick that someone who had promised to deliver five complainants to him by the end of the week had come empty or ‘overreached’ as he put it.”
Davis noted that one complainant said she felt “pressured, rather than supported”. That this process of ‘fishing’ – in the words of Sue Ruddick, the SNP’s Chief Operating Officer – continued after the criminal investigation into Salmond had begun. That other SNP members knew about this ‘witch hunt’ in the words of one, since 2018. That Peter Murrell’s claim that his texts about ‘pressurising’ the detectives investigating the case were out of character no longer stacks up.
Furthermore, Davis then claimed to have it “on good authority” that civil servants investigating the allegations against Salmond were complaining about ‘v bad’ interference from Liz Lloyd, Sturgeon’s Chief of Staff, in February 2018. The Scottish Government says: “The comment read out by Mr Davis in relation to the chief of staff does not relate to Ms A or Ms B and, at that time, she was not aware that there was any connection to the former first minister”.
But if so, why was Lloyd interfering? And if not, it shows that she knew of the Salmond case months before she told the Scottish Parliament she did.
So what?
This is a story with so many moving parts that it can be hard to pin down what’s important. Salmond’s wilder allegations of a grand conspiracy only muddy the waters further – and nothing that comes out as this story develops will erase the fact that the allegations against him were made, and the police felt them serious enough to take them to court.
Likewise, we should treat the claim of Davis’ whistleblower that the new evidence ‘point to collusion, perjury, up to criminal conspiracy’ with caution. It might, but leaks can serve agendas just as cover-ups do.
Sturgeon’s opponents have focused on the question of what the First Minister knew and when. It seems extremely unlikely that all of this could have been going on inside so centralised a party as the SNP without the leader of that party being informed. But if she did know, then Sturgeon misled the Scottish Parliament. In another universe, that might be a resigning issue. As might burning half a million pounds of taxpayers’ money losing a legal challenge one had to mislead one’s lawyers to fight at all.
But by drawing this out as long as it has, the Scottish Government may have got close enough to the upcoming Holyrood elections to stave off calls for the First Minister’s resignation. Sturgeon can simply say that it is for the Scottish electorate to judge her. (As Ian Smart points out, she appears to have neutered James Hamilton QC’s investigation into whether or not she broke the Ministerial Code in a like fashion.)
But Davis’ revelations will, alongside other developments only deepen the shadows this affair will cast over the SNP’s re-election campaign, just as polling suggests the scandal is finally starting to undermine the Nationalists’ position with the voters. And it may yet be that MPs at Westminster can uncover the smoking gun their colleagues at Holyrood have failed to turn up.