Alex Salmond inquiry: Why it’s vital MSPs’ committee sees ALL relevant evidence

Liam Fox is a former minister in a government which unlawfully prorogued Parliament and threatened to break international law in order to get its own way. On that basis, he and his Tory mates have done a pretty good job of bringing politics in the UK into international disrepute already.

Having regard to the farce that played out over Brexit, the litany of political chicanery and the disregard for the rule of law under Boris Johnson’s premiership, it would be easy just to say that Scotland will take no lectures from Westminster and leave it at that. But that would not be honest or candid. The events of the last week have not been good for the reputation of Scottish politics or our devolved Parliament.

At UK level, Brexit stress-tested the constitution and the separation of powers particularly when Boris Johnson tried to do away with parliamentary scrutiny and the courts stepped in to tell him that wouldn’t do.

Now the Holyrood inquiry is stress-testing the devolved settlement and the separation of powers in Scotland as allegations fly that the executive and the Crown are frustrating the ability of a parliamentary inquiry to get to the truth of what has happened. Whether that is the case remains to be seen but the appearance of obstruction is not good for our democracy.

The hokey cokey that has played out in relation to redactions to Alex Salmond’s written evidence has not only been farcical, it has also raised very real concerns about the separation of powers in our democracy and the ability of our Parliament to hold the executive and other organs of the state to account for their actions.

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Let’s be clear about the remit of the inquiry. It is to consider and report on the actions of the First Minister, Scottish Government officials and special advisers in dealing with complaints about Alex Salmond under the Scottish Government’s “Handling of harassment complaints involving current or former ministers” procedure and actions in relation to the Scottish Ministerial Code.

It is not a rerun of the complaints against Alex Salmond. In so far as the two original complaints from civil servants are concerned, in the Judicial Review case the court struck down the investigation into those complaints as unlawful and tainted by apparent bias. There has been no fresh investigation. So, there is no finding of culpability against Mr Salmond in respect of these complaints. Of course, that is not fair on the women who made the original complaints and it is in the interests of those women and, indeed everyone, to find out why the system failed them.

In relation to the criminal complaints that were made, Mr Salmond has been acquitted of all the charges. Much as some journalists and some politicians may have been very invested in a guilty verdict, they need to accept the verdict of the jury who heard and saw all the relevant evidence. As the Faculty of Advocates reminded us, the rule of law and maintaining confidence in the judicial system demands that the verdict of the impartial jury must be respected. It should not be second-guessed for political motives.

YES, in his own words Mr Salmond is no saint; but being no saint and engaging in harassment or non-consensual sexual activity are two very different things. There has been no finding that he did either.

So, to return to the events of the last week, after much legal to-ing and fro-ing, a judgment from Lady Dorrian clarifying the scope of the order preventing the publication of the names and identity of the complainers in the criminal case, and the involvement of Scottish Parliament’s Corporate Body – Mr Salmond lodged two written evidence submissions which the inquiry published on Monday evening. They were widely read and shared on social and mainstream media.

In two respects his evidence was explosive. Firstly, he made detailed allegations that the ministerial code has been breached. Secondly, he made very serious allegations that certain named individuals had engaged in a “deliberate, prolonged, malicious and concerted effort … to damage my reputation, even to the extent of having me imprisoned”.

On Tuesday, at the behest of the Crown Office, the Corporate Body of the Parliament withdrew the first submission (which deals with the ministerial code, not the conspiracy allegations) then re-published it with redactions which appeared to relate to the issue of whether the ministerial code had been breached. There was an uproar with claims of censorship from some journalists.

No-one, least of all those of us who have specialised in prosecuting sex crime, would disagree that court orders protecting the anonymity of complainers must be respected. The issue seems to be whether the redactions can legitimately be justified on that basis. It is a matter of record that when Spectator magazine published the same evidence, the Crown asked it to redact one paragraph only.

Now, apparently at the insistence of the Crown, there are five redacted paragraphs, but we don’t know why so much more was redacted. When the Lord Advocate came to Parliament, he left that question unanswered. Meantime, anyone interested in the case can still easily access the redacted paragraphs elsewhere and see what they say.

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The position of the Lord Advocate has come under fire. I agree with my colleagues in the Faculty of Advocates that his independent role must be respected, and I am going to put my cards on the table here. I know the present Lord Advocate well. We worked together in the Crown Office as Advocate Deputes a decade ago. He is a very well-respected lawyer and regarded by his legal peers as good and honourable man. I find it impossible to believe he would give in to political pressure. But the problem is that, because of the lack of a colourable explanation as to what has occurred, a suspicion has grown up that someone within the Crown Office has done just that.

THE Lord Advocate is the head of the Crown Office and ultimately answerable for its actions. The fact that he is also a Minister in the Scottish Government is less than ideal. Most countries separate out the roles of head of the prosecution service and government legal adviser for good reason. This case shows why.

Admittedly this is a historic problem not of this Government’s making. Indeed, the Scottish Government’s powers to do anything about this are limited because the role of the Lord Advocate and his position as a Minister are reserved under the Scotland Act. I believe it is time that Scotland considered moving to the same system as in England and Wales where a civil servant is employed as Director of Public Prosecutions quite separately from the political appointment of a government law officer.

Finally, in relation to the allegations of a “conspiracy”, Mr Salmond says the Crown holds the “most obvious and compelling evidence of such conduct” but is refusing to release it. We should not assume he has made these allegations lightly. He is prepared to repeat them on oath.

Moreover, the chair of the committee, Linda Fabiani, an SNP MSP, has expressed frustration and the committee is now going to try to use its statutory powers to force the Crown to release this information. It is right to do so. It is in the public interest that the committee should be able to establish whether these very serious allegations are true. The fallout from this unprecedented situation is not just resonating in Westminster. The New York Times has covered the story and, closer to home, the Irish Times. When I had a regular meeting with diplomats from the embassies of other European states earlier this week, they wanted to know what on earth is going on and what will be the likely repercussions.

And it is not just Scotland’s international reputation that is at stake. What of the people closer to home whom we still have to persuade of the benefits of independence? The last thing we need is for confidence in our Parliament and institutions to be undermined. The Tories want to diminish devolution and our Parliament. We must not let them have fuel.

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Yes, independence is riding high in the polls and so are the SNP, but we must not be complacent or hubristic. History teaches us that big opinion poll leads can be lost – just look at how Theresa May came a cropper in the 2017 General Election.

The committee must be able to hear all the relevant evidence. If redactions are to be made, they need to be justified properly. Those giving evidence to the committee should treat their oath with the seriousness it deserves. I have no doubt that while other witnesses haven’t exactly covered themselves in glory, the current and former First Ministers will be different in this respect.

So, let’s make sure the committee sees and hears all the relevant evidence. As a famous US Supreme Court Justice once said – sunlight is the best disinfectant.

The “nothing to see here” brigade who are trying to blame all this on “bad actors on social media” need to wise up and think of the reputation of their party, Parliament and country.