This is what Alex Salmond's judicial review can and can't do

The Scottish Government is saving its arguments for the courtroom. The two complainers are muted, missing. Up and down the country, journalists are grubbing around for any new angle on the story.

Newspaper columnists are exchanging decided views on less than half of the evidence you’d need to understand less than half of this difficult matter. And smack bang in the middle of this, like an alien spacecraft is – The Law.

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The law can seem like a black box. You can see what goes into it. You can form some sense of what comes out the other end. But how the cogs and wheels interact behind the facade can seem a baffling mystery. That magic phrase “for legal reasons” – covers a multitude of sins.

But one of the problems with the law’s perceived complexity is that we don’t always have the confidence to set out the plain simple truths about what it means for a case like this. There are many things we do not know about this case.

We do not know the full nature of the allegations which have been made against the former First Minister. We do not know whether they are true or false. Nothing is proven. The presumption of innocence remains. But there are critical things about the legal framework which it is essential everyone talking, thinking and writing about this case can, should and must understand.

This column does not propose to add to the misinformation which so easily circulates and becomes common currency on a story like this. What I want to do is give you the legal facts, with as straight a bat as possible, without partisanship or pre-judgment. I want to give you the tools to understand what can and cannot happen next.

To do so, first we’ve got to tackle some misconceptions. Interviewed by Brian Taylor the day this story broke – revealing his intention to launch a judicial review of the complaints process – Mr Salmond told the BBC Scotland veteran that “now the matter moves to a real court,” “where things can be properly judged and everyone will know it’s a fair account for everyone.”

On STV News on Tuesday, Mr Salmond said “if I lose this case, then I will have to answer to the complaints both comprehensively and publicly”, suggesting that “the administration at the senior levels of the Scottish government will have the most serious questions to answer” should he win. In his resignation statement yesterday, Mr Salmond returned to the theme, speaking about the judicial review petition in the context of an “opportunity to clear my name.”

It is easy to misunderstand what the judicial review process can and cannot do as a matter of law. You might well imagine that the Court of Session will weigh up the facts of the complaints, take evidence, and determine where the truth lies.

This is not so. Whether Salmond wins his case or loses it, the judicial review cannot “clear” his name. The Court of Session doesn’t hand out exonerations. Indeed, the Court has a remarkably restricted role in cases of this kind.

If he wins permission to bring the case, the court will have to ask itself three key questions about the Scottish Government process. Firstly: has the civil service followed its own rules and procedures? Has it operated within its powers or strayed beyond them? Secondly, is the decision irrational? Is it so unreasonable that no reasonable decision-maker could have made it? Lastly, we come to the likely nub of this case: fairness. Did the rules afford Mr Salmond a fair hearing?

This is not a criminal trial. Like similar disciplinary procedures across the public and private sectors, the Scottish Government procedures must be fair. The Court of Session may ask searching questions about whether this process met that threshold. But civil servants aren’t obliged to adopt technical rules of evidence, proof beyond reasonable doubt or to permit the cross-examination of witnesses.

Considering they’re at the heart of this case, curiously little has been written over the past seven days about what the Scottish Government harassment code actually says. Here are the facts. The code says nothing about any “right to believed”. Instead, if a complaint is made, a civil servant with “no prior involvement with any aspect of the matter being raised” is appointed to investigate.

Their job is to “undertake an impartial collection of facts” about what allegedly happened. This independent investigator then prepares a preliminary report for the permanent secretary.

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Here, Leslie Evans is required to make an important call. If she decides the investigation “gives cause for concern” over the behaviour of the ex-minister, the rules say the minister must be “provided with details of the complaint and given an opportunity to respond” and “invited to provide a statement setting out their recollection of events.”

Critically, the subject of the complaint can also ask for statements to taken from other witnesses. Only once this process is concluded should the permanent secretary consider a final report, accommodating the minister’s point of view, and “decide whether the complaint is well founded”.

The rules say that this paper must be provided both to the official who lodged the complaint, and to the person they complained about.

It is this procedure which, in Salmond’s submission, is unfair. Judges may or may not agree with him. But even if he carries that argument, the remedies the Court of Session can make available to the former First Minister are extremely limited.

They might just declare the process to be unfair. They might reduce the decision and send it back to the Scottish Government to revisit. But the judicial review cannot halt – or even put into hibernation – any criminal inquiry into whether or not the substantive allegations against the former First Minister are true. For all the focus on fairness and procedure, this is the only essential question in this case. For the complainers, for Mr Salmond, for the Scottish Government – the wheels of justice will grind slowly, but ever onwards.