SALMOND INQUIRY : LIES, LIES, LIES

While the many lies told by the Scottish Government about its treatment of Alex Salmond are now being exposed daily, it’s important to remember that they’re all ultimately in service of one central lie: that Nicola Sturgeon “tried to do the right thing”.

One way in which that lie was exposed by the revelations on Wednesday was the publication of the text in which, on 3 June 2018, Alex Salmond set out for Sturgeon his offer of binding arbitration on the legality of the complaints procedure. As he rightly pointed out, this offer, if accepted, would have conclusively and privately settled that question without the need for the judicial review that eventually followed and without the need for any involvement of the complainers or risk of exposure of their identities.

The offer was rejected out of hand by the unelected civil servant to whom Sturgeon had turned over the whole business, a rejection fully supported by Sturgeon, despite the fact that she is, as Salmond pointed out, herself a lawyer who must surely have been able to see that this was entirely the “right thing” to do for the Government, for the complainers, for Salmond and, as it turns out, for the Scottish taxpayer.

I’ll say more about the detail of this in a future post.

Sturgeon’s “forgetfulness” on when exactly she became aware of the allegations against Salmond is of course the tip of the iceberg of another lie. This has been extensively commented on with varying degrees of insight since Wednesday but again its significance for the central lie remains to be fully exposed.

Sturgeon’s determination to give herself plausible deniability over her Government’s treatment of Salmond from at least November 2017 onwards is at the core of the whole scandal.

I’ll say more about that too in a future post.

Today, I just want to complete the line of thought developed in my last post, on the Scottish Government’s ludicrous claim, maintained to this day, that they conceded the judicial review without ever having done anything wrong.

The reasonable observers

The fault, they say, lies not with them but with this pesky “reasonable observer” who has misconstrued the terms of their procedure and misinterpreted their implementation of that procedure such that the procedure – totally fine in itself – and the actions of their officials – exemplary in their professionalism and impartiality – became somehow biased and unlawful.

This is one lie that can be exposed without the need for any further investigation or evidence.

It can be exposed by the simple means of rational thought.

Let’s think about who a “reasonable observer” might be in the context of a procedure for handling harassment complaints against former Ministers. Clearly, it is not the complainer, because the complainer is a party in the procedure, not an observer of it, and there is no requirement on the complainer to be reasonable, only to make the complaint and have it handled by the procedure. Equally, it is not the former Minister, who is again a party in the procedure with no duty of reasonableness or detachment either.

Now think about who does have the qualities of reasonableness and detachment which the parties in the procedure lack. Those are surely the qualities to be expected – in fact, demanded – of the Government lawyers and senior civil servants who draft, approve and then implement the procedure. Indeed, if I’m not mistaken, these duties of detachment, impartiality and reasonableness are written into their contracts of employment as civil servants and Government employees. They’re contractually obliged to be “reasonable observers”.

Now look at what Leslie Evans and the Scottish Government conceded when they conceded the judicial review. It’s right there in their own Statement for the inquiry:

“[I]t became apparent to the Scottish Government, based on a review of the case which was informed by legal advice, that the combination of two issues could now impact on the case. Firstly, that whilst the meaning of paragraph 10 of the procedure was clear to those involved in its development and operation (i.e. not being involved in the matter being investigated), the paragraph was open to a different interpretation – to mean no prior contact with the complainers in addition to any involvement in the subject matter of the complaint. Secondly, having regard to the totality of the Investigating Officer’s dealings with the complainers before her appointment as Investigating Officer, the reasonable observer would conclude that there was a real possibility that she could not act impartially as she was required to do by the procedure.”

Leave aside the many other grounds on which senior counsel for Salmond apparently advised that the procedure was unlawful, some of which a first year legal trainee could spot. Those too will no doubt be exposed at some point when the inquiry publishes all of the pleadings and notes of argument in the case as it is now free to do.

Consider only this ground of partiality that tainted the whole procedure, and that Evans and the Scottish Government have admitted. Consider the court’s ruling, again in the words of the Scottish Government themselves, that “the Permanent Secretary’s decision report and letter [were] unlawful in respect that they were taken in circumstances which were procedurally unfair and in respect of which they were tainted by apparent bias.”

The responsibility for this unlawfulness of both the procedure and its implementation does not lie with some Johnny-come-lately “reasonable observer” who came on the scene during the judicial review process to find fault with what up until then had been a great job all round.

It lies with the senior civil servants and lawyers – the “reasonable observers” – whose whole job it was to stand back in detached fashion and draft a procedure which, when implemented according to their intentions, would be fair and unbiased.

In their haste to get Alex Salmond, they got that wrong, wrong, wrong, and it’s way past high time they owned up to it.

What the expenses tell us

Wings Over Scotland, in that site’s usual lucid and incisive fashion, picked up on some of these points from this blog in a recent post and had some kind words for it, which are much appreciated. It should hardly need saying that the information and analysis provided day after day, year after year by the Wings site remains by a distance the most important resource that the grassroots Scottish independence movement has.

So let me add this to the excellent analysis in that post of the expenses incurred in the Scottish Government’s unlawful attempt to ruin Alex Salmond.

When they conceded the judicial review, Evans and the Scottish Government also conceded that their whole conduct of the case was such that Salmond was entitled to expenses on the “solicitor and client, client paying” scale. Unfortunately, that dry-as-dust legal terminology obscures what this actually means, and how significant it is.

In the overwhelming majority of cases, court expenses are awarded or conceded on the “party and party” scale, which means that if you win your case, you get the expenses that the other side can reasonably be expected to pay as necessary for your conduct of the action. These are always less than your solicitors and counsel actually charge you – sometimes as little as 60% of your actual costs – and you just have to live with the shortfall.

Only in the most exceptional of cases – I’ve never been involved in one, on either side – does a court award the winning party expenses on the scale which the Scottish Government conceded in the Salmond case.

In McKie v Scottish Ministers [2006] CSOH 54, Lord Hodge reviewed the “well-settled” authority on this, and explained why such an award is so rare. (By way of illustration, this was the case of Shirley McKie, the police officer whose life was ruined when she was falsely accused of leaving fingerprints at a crime scene, whose entirely justified court action was disgracefully opposed and obstructed by her police employers at every turn and who still didn’t get “solicitor and client” scale expenses from Lord Hodge.)

Lord Hodge said this:

“[W]here one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense, the court can impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale. … [I]n its consideration of the reasonableness of a party’s conduct of an action, the court can take into account all relevant circumstances. Those circumstances include the party’s behaviour before the action commenced, the adequacy of a party’s preparation for the action, the strengths or otherwise of a party’s position on the substantive merits of the action, the use of a court action for an improper purpose, and the way in which a party has used court procedure, for example to progress or delay the resolution of the dispute.”

This, then, is what the Scottish Government conceded about its conduct of the Salmond judicial review and, by extension, of the unlawful procedure which gave rise to it.

Incompetent. Unreasonable. Lacking substantive merit. Improper purpose. Delay.

The oft-repeated claim of Sturgeon, Evans and the Scottish Government that they just got unlucky in some late-discovered technicality in the Salmond case is just one more shameful lie.

21 thoughts on “SALMOND INQUIRY : LIES, LIES, LIES

  1. Excellently written. Thank You so much 😊 SNP No doubt about it, are in trouble. It will all come out in the end. God knows how or when there will be independence? It just gets more depressing daily

    Liked by 1 person

    1. Thanks, Nosey. A wise old friend of mine used to say just keep organising so the structure is there when the time comes. You can never predict what the spark might be. The thing is to be ready when it happens. Independence is coming, I’m sure of that.

      Liked by 2 people

  2. It was during this period a Spice Girls tribute band was formed in Auld Reekie and believe it or not they presented as the Spite Girls and three of their songs, ‘Wannabee’ ‘Angels’ ‘Denying’, featured prominently in their act. How’s that for irony in coincidence? Not a fan I hasten to point out lest that thought crossed your mind by the way. Discography info courtesy of Wikipedia.

    Thanks Gordon for your insightful dissection of the facts as they appear in this sordid and duplicitous affair. Replication of this analysis requires to be broadcast far and wide by whichever forum possible. Look forward to your continuing dismantling of the case for the indefensible.

    Liked by 2 people

  3. As others have said Gordon your dissection and EXPOSURE of the lies and misinformation is very much appreciated, and ALL TRUE believers of independence should NEVER shy away from the TRUTH even though it is distasteful, real independence supporters are so lucky to have Gordon Dangerfield, Stuart Campbell, Craig Murray, Barrhead Boy(Roddy), Jeggit ( J McCann) Mark Hirst and so many others to enlighten and expose the duplicitousness of the people we have invested our trust in to run our country and to forge ahead with independence. As an aside Gordon I and others believe that the TOU breaches are an essential pathway to indy and cannot understand why our SOVEREIGNTY is NOT shouted from the rooftops. It would be informative to have your legal opinion on this

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    1. Honoured to be put in that company, TH. I’m afraid I know nothing about TOU law though, and not enough hours in the day to look. Bottom line for us all, I think, is that it’s the hard graft of grassroots campaigning, not leaders or lawyers, that will get us independence in the end.

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  4. Excellent deconstruction of another false narrative – concise and clear. Thanks.

    I am coming to the Conclusion that Evans, Lloyd and the legals at the top of in COPFS are corrupt but they are also not very clever. Why Sturgeon ever allowed herself to be talked into this catastrophic attempt to destroy and jail Alex Salmond is quite beyond me…. possibly the biggest political mistake in the last 100 years and it might cost Scotland dear!

    To think David McLetchie had to resign because of a few dodgy taxi rides…. beggars believe

    Gordon – thanks for your expertise on these matters and looking forward to more posts from you on this and other malfeasance in public office!

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  5. Come to your site after reading both Craig Murray’s blog and latterly Wings’ site. I’m not Scottish but think that Scotland should be independent from the “United” “Kingdom”. As an English lawyer, I was interested to read about the costs order on the ‘solicitor and client’ basis.

    In England, such a costs order is called an indemnity costs order. The use of the word ‘indemnity’ makes clear that if one party conducts litigation in the manner that the litigation was conducted against Mr Salmond, then that party should pay such costs that, in effect, fully indemnify the other party. It is seldom granted, needs to be specifically asked for and this shows quite how badly the conduct against Mr Salmond.

    I look forward to following your posts.

    Liked by 1 person

    1. Thanks, Ingwe, that’s interesting information and sounds like the English system is more transparent and straightforward on this, as it is in other areas too. We’re rightly proud of some of the distinctive features of the Scottish system but I think this is one of a good few areas where we should take a leaf from England’s book. Hope you keep finding the blog of interest.

      Like

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