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  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.