Salmond inquiry told late discovery of evidence was ’embarrassing’
The late discovery of evidence that led to Alex Salmond’s legal victory over the Scottish Government’s unlawful investigation of harassment claims was “embarrassing”, Scotland’s top law officer has said.
Lord Advocate James Wolffe said the revelation the person in charge of investigating alleged sexual harassment by the former first minister had met women making the claims before her appointment “was damaging in a number of respects”.
Giving evidence to Committee on the Scottish Government Handling of Harassment Complaints, Mr Wolffe also said the emergence of new documents meant ministers had misled the court.
The Scottish Government’s legal team said they learned of prior contact between chief investigating officer Judith Mackinnon and two women who later came forward to allege sexual harassment by Mr Salmond in October 2018.
Mr Wolffe explained two documents were then discovered in December 2018 — a letter referring to a meeting between the investigating officer and one of the complainants and an email exchange organising a separate meeting with another woman.
“Those documents disclosed additional contact between the investigating officer and the complainants which had not previously been appreciated,” Mr Wolffe said.
“The disclosure of that information was damaging in a number of respects.”
He said there was no “intention, desire or wish to be anything other than entirely transparent” but added: “It was obviously substantively damaging from the Government’s perspective and – properly – it prompted a review of the whole factual picture.”
Mr Wolffe explained the prior contact between Ms Mackinnon and two complainants was not deemed “fatal” to the Scottish Government’s case when it first emerged in October.
Consequently, the Scottish Government continued its judicial review defence for several more months before eventually conceding the case in January 2019.
The protracted saga resulted in the highest level of payout, with Mr Salmond awarded £512,250.
Mr Wolffe told MSPs the Scottish Government “voluntarily disclosed” evidence about the prior contact to Mr Salmond’s side “because the Government recognised it had an obligation and a responsibility to be candid about the position”.
Asked by Lib Dem MSP Alex Cole-Hamilton whether any law officer threatened to resign over the handling of the judicial review, Mr Wolffe replied: “Against the background where the Government was determined – as it ought to be in litigation – to be candid and transparent, to find itself in the position that it found itself in with the documents coming to light was embarrassing.”
Permanent Secretary Leslie Evans later said she was “pretty disappointed” to learn about the evidence of prior contact.
Scotland’s most senior civil servant told MSPs: “It was unhelpful for the Scottish Government’s position for that information to appear at that point, I don’t disagree with the Lord Advocate’s assessment on that point at all.”
In her opening statement, Ms Evans said the Scottish Government’s initial position was it had a “strong case to defend”.
The Court of Session later ruled the way the allegations by two women against him were dealt with was “unlawful” and “tainted with apparent bias”.
The Permanent Secretary said: “Although on the face of it the content of these documents was administrative in nature, their appearance at this stage in the proceedings cast doubt on the capacity of the Scottish Government to clearly evidence and explain the nature of every contact, and contradicted earlier assurances.
“It was at this point that it became clear that prospects had changed.”
Ms Evans added: “Whilst there was nothing to suggest that the investigating officer did not in fact conduct her duties in an entirely impartial way, the Scottish Government concluded that the totality of interactions between the investigating officer and complainers were such that the test of apparent bias was met.
“As a result, and in line with my responsibilities as principal accountable officer, I took the decision to concede the judicial review very rapidly – in fact within a matter of days.”