Lawyers warned the Scottish Government was heading for defeat in its court battle with Alex Salmond more than three months before it lost the case.
In a major development which piles more pressure on Nicola Sturgeon, it emerged yesterday that they warned in September 2018 there was ‘a real risk that the court may be persuaded by the petitioner’s case in respect of the ground of challenge based on ‘procedural unfairness’.’
Legal advisers then informed officials on October 31 of a ‘very real problem’ which eventually led to Mr Salmond winning the case.
An ‘urgent note’ issued by senior counsel highlighted prior contact between the official who investigated complainants and a woman making the allegations.
Roddy Dunlop, QC, who wrote the note, said he had contacted the Lord Advocate, James Wolffe, QC, to alert him to his concerns, ‘and, frankly, as a sense check’.
Mr Wolffe shared his concerns about the potential ‘repercussions’ for the case, he said. The legal advice was finally published last night after Deputy First Minister John Swinney had looked likely to lose a vote of no confidence tabled by the Tories.
Taxpayers were landed with a bill of more than £500,000 when the Scottish Government investigation into Mr Salmond was described as ‘unlawful’ and ‘tainted by apparent bias’ by the Court of Session in January 2019.
An email sent to government officials by Mr Dunlop, now Dean of the Faculty of Advocates, at 10.50pm on October 31, said: ‘I have just discussed this with the Lord Advocate, as I am very concerned indeed. He has suggested a short note setting out my concerns, and this is now attached.
‘I am sorry to be sending this to you at all, let alone late at night on Halloween, but I’m afraid I see no other option.’
In a detailed report headed ‘URGENT note by senior counsel’, he explains that one of the complainers first made the complaint to Scottish Government HR official Judith Mackinnon, who went on to become the investigating officer in December 2017.
He says this is a ‘concern’ as the complaints procedure sets out there must be ‘no prior contact’.
He said: ‘I consider that this presents a very real problem indeed… If I am correct in the views expressed above, then the procedure was not followed: rather, an express embargo was ignored in a way which may well vitiate the entire proceedings.’
Mr Dunlop then goes on to add that ‘arguably that infects all that followed thereon’.
He said the Lord Advocate ‘has also indicated that he shares my firm advice that this issue will have to be disclosed, and my concern as to the potential repercussions for the wider case’.
Mr Dunlop also said: ‘A swift decision is going to have to be taken on whether to concede (a) the issue is disclosed and any argument based thereon then resisted, or (b) the issue is disclosed and the petition then conceded as a result thereof.
‘I can well understand the angst that even suggesting (b) will provoke, but if the proceedings are vitiated then it makes little sense to continue to defend the indefensible.’
On December 6, 2018, legal advisers told ministers in their view the ‘least worst option’ would be to concede the petition. They wrote: ‘We cannot let the respondents sail forth into January’s hearing without the now very real risks of doing so being crystal clear to all concerned.’
Scottish Tory leader Douglas Ross said: ‘Despite the Scottish parliament backing two Scottish Conservative motions to release the legal advice, the SNP never even bothered to lift a finger to actually try and publish it.
‘It’s jaw-dropping that they didn’t even ask if the Lord Advocate would allow it to be published. Instead, they let the public and press think he was the block on its release, when it was SNP ministers all along.
‘John Swinney refused to even consider publishing the legal advice until his job was on the line.’
Mr Swinney said: ‘These documents are clear. Our legal advice was optimistic about the Government’s prospects for success at the start. It became gradually but progressively less optimistic over time.
‘It was only in December that the advice concluded that our case was no longer stateable and we should concede. As late as December 11, ministers were advised that we should continue.’
He added: ‘Significantly, however, this comprehensively disproves claims that we had continued the case in defiance of legal advice.’