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Nicola Sturgeon swearing her oath at the parliamentary inquiry into the Scottish government's botched handling of complaints a
Nicola Sturgeon at the beginning of her evidence to the cross-party committee. Andrew Cowan/EPA

Why Nicola Sturgeon and Alex Salmond were grilled by Scotland’s parliament – a legal expert explains

It is rare that a parliamentary panel into the creation and use of an internal government policy would get full-blown live media coverage, never mind an audience of thousands tuning in agog to hear the evidence.

But a recent Scottish parliament hearing was not like any other held in Holyrood since its inception in 1999. Scotland’s first minister, Nicola Sturgeon, was being quizzed about her government’s harassment policy and the mishandling of its use in the case of two complainers against former first minister Alex Salmond. The full session lasted a marathon eight hours.

The spur to this inquiry was Salmond winning a judicial review two years ago. This preceded his criminal trial and acquittal one year ago over several sexual offence charges including those brought by the two original complainers.

The review sought to challenge the policy used by the government to investigate Salmond. He won when it was discovered that the investigator of the complaints had previously been involved in the case, giving an appearance of bias. This internal mess caused parliament to set up a cross-party inquiry to which Salmond and Sturgeon would give evidence.

On the eve of Sturgeon’s appearance, the government – under duress – released the legal advice it received about Salmond’s action, further heightening the tension. Documents revealed that as more information was discovered regarding the specifics of the complaints against Salmond, the legal counsel for the government realised it would lose.

The Conservative Party – the official opposition at Holyrood – called for Sturgeon’s immediate resignation and tabled a vote of no confidence, claiming the advice showed the government had abused its power and wasted public money in pursuing a “doomed” legal action.

Effective rebuttal

These relatively esoteric issues of law and policy were combined with deeply personal issues which made the hearings essential viewing for many. For more than a quarter of a century, Salmond had been Sturgeon’s long-term political mentor and confidante, cabinet colleague and friend.

She began the hearing with an explanation of her personal devastation and the “moment in my life that I will never forget” when Salmond outlined to her the allegations of his behaviour. Despite their friendship, she made it clear she believed it was important to investigate his “deeply inappropriate behaviour” and not follow the “age old path” of defending powerful men.

Throughout the day, Sturgeon’s fairly effective rebuttal of most of the arguments was tempered with a degree of self-reflection and regret. She noted that Salmond, who had given evidence the week before, had no equivalent moment nor did he apologise to any of the women who had complained about his behaviour.

Alex Salmond embraces Nicola Sturgeon surrounded by clapping colleagues.
Sturgeon and Salmond in happier times, 2014. Robert Perry/Shutterstock

Sturgeon suggested that Salmond had wanted her to intervene in the complaints procedure to suggest an alternative remedy like some form of mediation, but she had refused. That clearly would have breached the complaints procedure, which states the first minister should not have no involvement in the process at all. In Salmond’s later written evidence, he states the first minister “suggested that she would intervene in favour of a mediation process at an appropriate stage” but subsequently decided against intervening.

The more lurid claims and innuendo of conspiracy that had circulated in political circles over the last few weeks were also dealt with. It was alleged that material that incriminated the first minister was being covered up. However as Sturgeon outlined, most of the evidence that had been withheld from the committee was related to Salmond’s criminal trial.

There is still a live court order in place which prevents the identification of the women who accused Salmond of offences. This means any information that could indirectly identify those women cannot be published.

The first minister faced head-on the political frenzy around the legal advice on the judicial review, which centred around the issue of whether her governmnent was pursuing a lost cause. This, in her critics’ view, resulted in the public purse paying out hundreds of thousands of pounds in Salmond’s legal costs.

However, if the documents are examined closely, the Scottish government initially was advised by its legal counsel that it had a strong case in defending its harassment and complaints policy.

Documents related to Salmond’s investigation, and the mistakes made, took months to be produced by the government. Sturgeon conceded this was a “catastrophic” error. This gave an appearance of “apparent bias” and blew apart the Scottish government’s case. So although the overall policy was capable of being defended, the application of it meant the government would have to concede defeat. This was agreed in December 2018, weeks before Salmond’s court victory.

Sturgeon was confident in her evidence on this issue and believed the government had a stateable case on their policy which they were prepared to defend. Given the initial advice, it would be difficult to say after Wednesday’s evidence that pursuing this legal case was one of outright recklessness, which her more strident critics have claimed.

Shaky ground

Where Sturgeon looks weaker is on the charge of misleading parliament over when she first heard of the allegations against Salmond – which would constitute a clear breach of the ministerial code. It has been revealed she met with an associate of Salmond on March 29 2018 and discussed the accusations, five days before April 2, the date she told parliament she had learned of them.

Sturgeon claimed she had forgotten about the March meeting, but her evidence was markedly less confident. For someone who demonstrated a forensic grasp of detail and chronology of events, this did seem surprising.

Ultimately the absence of documentary evidence around those meetings means it becomes a question of credibility. A parliamentary committee made up of competing political factions may find this impossible to reach consensus on. However, the potential breach of the code is subject to another investigation by the wholly independent figure James Hamilton QC, an Irish lawyer who will report in the next few weeks.

The first minister was confident throughout most of the day and dealt robustly with the majority of the issues, particularly, in her words, the more “absurd” claims of a plot. But questions still remain over some of the details of her meetings with Salmond, which may be seen as a breach of the Scottish government ministerial code. All this just eight weeks ahead of an election to the parliament that could decide whether the country again goes to the polls on the issue of independence from the rest of the UK.

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