Nicola Sturgeon denies her government should have conceded Salmond case earlier

The First Minister was questioned on the advice the administration received from senior lawyers on the former First Minister's judicial review from September to December 2018.

Correspondence from senior counsel dated October 31 2018 and published yesterday suggested Roddy Dunlop QC had serious reservations about the government's chances of success.

His assessment was based on his knowledge that there had been prior contact between the official carrying out the investigation of the complaints made by two civil servants against Salmond.

"It would be wrong for me to suggest that this revelation is anything other than an extremely concerning one," he wrote in his letter, adding that he had informed the Lord Advocate of his view.

Salmond last week claimed the government should have conceded the case at this point and that it was a breach of the ministerial code that the First Minister did not as the decision lead to a waste of public funds.

The First Minister has denied breaching the ministerial code and told MSPs today she was required to take the advice of the Lord Advocate who was advising that the government could still mount a successful defence.

She was also asked by Tory MSP Murdo Fraser why the government did not then concede the case on December 6 following more legal advice from counsel that "the least worst option" would be to concede then - matter the government did not do until January the following year.

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He challenged Sturgeon on this, saying: "You were risking public funds in continuing with the action."

The First Minister told him: "I think every time a government defends a legal action it is risking public funds, because there is never a guarantee you are going to be successful."

She added: "My understanding is that much of what went really wrong in the case, catastrophically wrong... was in that later stage of December, when it became clear, I believe not intentionally, that there was information and material that had not hitherto been disclosed."

But she said: "Up until as late as December 11 it was the opinion of law officers we had a stateable case with credible arguments."

Earlier Fraser asked what the First Minister's role was in relation to the judicial review.

She said: "My formal role was, I was named as an interested party in the petition.
"I was involved in discussions about the prospects of success and the changing prospects as we went though.

"My involvement was greater at particular junctures. I wasn't being briefed every single day.

"It was not an unusual degree of involvement or oversight - I mean obviously given who was taking the Scottish Government to court it was slightly unusual."

Fraser said it seemed the First Minister appeared to be quite well briefed throughout the process.

He asked about the note on prospects that was prepared in September 2018, where Ms Sturgeon said "counsel were confident about the case the Scottish Government had".

But in the note, counsel wrote: "We consider the defence to be perfectly stateable, but it would be wrong to say we do not see vulnerability."

Fraser said he would not categorise that as confident.

Sturgeon said that in all of the legal action the Government was involved in, she had never seen them advise they had 100% cast-iron prospects.

She added: "In the early days of minimum pricing, I think if you were to apply anything like the test you're applying to this prospect, we would have never done it. Particularly in those early days, the views on our prospect of success were really not that confident.

"But we thought we could argue it because of the importance of doing it. And that's just the nature of this. So in the context of all the legal opinions I've seen, that actually, is on the more optimistic end of the spectrum."

During their exchanges the First Minister rejected suggestions the Government did not take the advice of senior lawyers in conceding Salmond's judicial review petition.

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Fraser highlighted some advice which warned "the trumpeting would be far louder" if the case proceeded to a written judgment, saying the "least worst option would be to concede the petition".

Sturgeon said: "The charge that has been made against me is that I wilfully allowed a judicial review to proceed against the legal advice, therefore I broke the ministerial code.

"With respect, as you now know, I was acting in accordance with the views of the law officers, not against.

"We thought we had a stateable case, counsel was not arguing at that stage - that changed later - we thought we had credible arguments to make, and we were also taking account of that wider interest in getting a determination on the many grounds of challenge that Alex Salmond had made to both the procedure and its application."

Alasdair Allan asked the First Minister what role external counsel played in determining the Government's legal position and whether the case departed from the usual position.

The First Minister said: "External counsel play a big role - they give advice, they draft proceedings, they play a big role, as you've now seen.

"Their advice is very important. It carries a lot of weight.

"I wouldn't say it was particularly out of the ordinary for me.

"You know, this was a former first minister taking the government to court. It was my former boss, friend, mentor, long-time associate.

"It wasn't, in that sense, normal. It didn't lead to a significantly appreciable difference to my degree of involvement."

Independent MSP Andy Wightman asked the First Minister: "Would it be fair to say that the critical tipping point, the thing that changed everything, was the period December 6-19?"

Sturgeon agreed but said she would narrow from the 11th onwards would be when it really started to go badly wrong.

Wightman said: "Ministers decided to concede the case. As I understand it, there was discussion at 4pm on Hogmanay 2018, discussing how it should be conceded."

Labour MSP Jackie Baillie spoke about "how frustrated" she had been as a member of the committee as they tried to get sight of the Scottish Government's legal advice - which was released on Tuesday after the Greens joined the other opposition parties in saying they would back a Tory no confidence motion in Deputy First Minister John Swinney if the files weren't made available.

"I don't think I have felt quite so frustrated in my 22 years of being on parliamentary committees as with this one," she said.

"We have waited for information from the Scottish Government, the stuff we have received has been partial and late.

"The legal advice has taken two votes in Parliament and a motion of no confidence in John Swinney before we saw it last night at six o'clock.

"And there is information missing."

Baillie added: "We have waited till the 11th hour for the legal advice, we get partial legal advice."

She asked Sturgeon: "Do you understand the frustration of the committee? Do you understand that it looks as though the Government doesn't want to give us critical information?"

The First Minister said there had been "really complex legal issues" behind the provision of legal information to the committee.

She said she would "reflect seriously" on what Baillie had said but that there were concerns about the release of the legal documents.

The First Minister said: "I get some of the frustration, I share some of the frustration."

Sturgeon added: "Sitting here right now I am glad you have got the legal advice so that I can talk about it openly today.

"But I have a concern about getting into a situation where government legal advice is routinely asked for and published, because I think that will undermine the basis on which governments properly inform their decisions."

She said ministers had "genuinely-held views and concerns about the basis on which governments need to be able to take confidential legal advice".

Sturgeon added: "When Alex Salmond was first minister, he held those views as strongly as I do now."