With precisely the grim level of cynicism we’ve now come to expect as standard, the Scottish Government has released a key document relating to the Salmond inquiry two days before Christmas, hoping it’ll be buried in the ongoing coronavirus-and-Brexit-related implosion of the UK.
The document, which contains legal advice relating to the judicial review brought by Salmond regarding the Scottish Government’s investigations into false allegations of misconduct against him, is extremely heavily redacted. But a few interesting passages remain, so let’s have some fun.
The document, dated 28 December 2018, is a report from Sarah Davidson, the then-Director General of Organisational Development and Operations, one of those vague job titles that covers a multitude of sins.
It is, officially, the document which advised the Scottish Government to concede the case, on which it had by that point already spent an amount of money it refuses to reveal to the Scottish public – but which can be reasonably estimated at upwards of half a million pounds, given that we know Alex Salmond had spent a similar sum by then on his side of the argument.
But on even a cursory examination of what little remains unredacted, that line falls apart like a second-hand IKEA cabinet assembled by an old blind woman.
Let’s start with this one. What goes in here, readers?
What it’s claiming – and readers can make their own judgement about how believable a claim this is – is that the Scottish Government’s extremely expensive legal counsel only found out a few days before they were due to go to court that Judith Mackinnon had had extensive contact with the two complainers prior to being appointed as the Investigating Officer.
(The two QCs acting for the Scottish Government were Christine O’Neill as “junior” counsel, and Roddy Dunlop as senior, two of the country’s most eminent advocates. Alert readers may recall Dunlop from his successful work on two high-profile cases of recent years, on behalf of Alistair Carmichael and Kezia Dugdale.)
So it’s interesting to ponder what’s missing. (We don’t actually know how long any of the redactions are, because they’ve all been replaced with “[Redacted]” rather than blacked out. They could be a single word or a dozen paragraphs.)
The most obvious thing would be a word like “frankly”, but why would anyone want to redact that? Similarly there’s no conceivable reason to redact something like “in the opinion of counsel”, and it’s very difficult to plausibly add anything to that sentence which might identify anyone whose identity is being kept secret.
The only reason to blank out something there is if it’s in some way incriminating, such as – and we emphasise this is pure illustrative speculation on our part – “contrary to what counsel had been led to believe by the Scottish Government”.
So make your guesses, folks. We’ll call that Blank 1.
(Though it’s perhaps worth mentioning in passing that the word “unstat[e]able” is one with a very particular meaning for anyone practicing law.)
Now, there’s nothing actually redacted in the paragraph above, but there’s certainly something missing from it. Who, a casual reader might wonder, has been failing to be adequately “systematic and comprehensive” in terms of their “duty of candour” to inform the legal counsel that the Scottish Government is shovelling your money at? Who was in charge of this process? Who designed it and who was carrying it out?
We imagine that it was these people here:
(We know there are more than one because of the use of “share” rather than “shares”.)
We’ll call that Blank 2.
The next part comes under “SUMMARY OF COUNSEL’S ADVICE”.
Well, that’s helpful. But we know that the 19-21 December parts refer to the so-called “watershed moment” at which point it was no longer possible to deny that the game was up. So what happened on and before 31 October?
We know that counsel gave the Scottish Government advice on the case in that period, because that’s what’s been redacted above. And fortunately the document goes on to outline in more detail what it was.
Okay, not much more detail. But we learn that SOMETHING was revealed on 19 October, and that it was something that everyone knew was important and had to be disclosed. But that revelation didn’t officially take place until 19-21 December, two months later.
So let’s speculate illustratively again. We know it’s something the Scottish Government wants to hide, because it’s been redacted. So let’s imagine, by way of example, that counsel knew fine on 19 October that Judith Mackinnon had been in extensive contact with the complainers, and had advised the Scottish Government that this completely torpedoed the case.
It is, we can’t help but noting, somewhat implausible that they didn’t know, because if not then the Scottish Government was wasting an awful lot of money not telling its very costly representatives stuff that they really needed to know in order to arrive at their advice. But we can’t tell you that for certain at this stage, so we’re only speaking hypothetically here – let’s call it Blank 3.
But if that’s what’s being hidden, why, then, would the Scottish Government not take that advice, and instead plough on, burning public money, for several more months? Perhaps this paragraph includes some clues.
It may or may not be important to remember that in December 2018, when this report was produced, Salmond still hadn’t been charged by the police – that didn’t happen until the middle of January 2019.
Had the Scottish Government been advised in October that its prospective case in the judicial review was untenable, its last hope of avoiding either an embarrassingly comprehensive defeat or an almost equally embarrassing climbdown would have been if some other events had overtaken the judicial review and caused it to be shelved. Events such as, purely illustratively, a criminal prosecution.
Was the Scottish Government advised to concede the case in October 2018, but kept stalling and spending money in the hope of dragging it out until a criminal prosecution took the judicial review off the table entirely? This document doesn’t tell us.
But such a strategy would presumably have been quite poorly received by its legal advisers, whose hard-won reputations would be at stake if they were asked to present such a laughable case in front of a senior judge like Lord Pentland.
(And we know it was a laughable case because Alex Salmond was awarded costs on the almost unprecedented punitive “agent and client” basis, reflecting the court’s anger at having its time wasted.)
Does anything in the document tell us how counsel felt?
The short, innocuous-looking paragraph above is in fact probably the most explosive unredacted revelation in the whole document. Because what it says is that the Scottish Government’s legal counsel had given it an ultimatum – “concede this case or we quit”.
Such a step is almost unheard of. For a pair of QCs to walk away from a client rather than be humiliated in court would be an event of earthquake proportions – especially when that client was a government.
And yet here it is, in unredacted black and white. The Scottish Government’s counsel could no longer endure the case they were being asked to present in court, and was forced to deliver a threat to its own client.
And yet we’re expected to believe that these learned people, charging hundreds or thousands of pounds an hour, had been strung along at public expense for months on end without being told absolutely key facts, which were known to everyone else and their dog who was involved.
It’s not hard to see why this document was released two days before Christmas. But as we say, we’re only guessing about what all the bits we’re not allowed to see could contain. So perhaps, as a light-hearted festive parlour game, readers could offer some more innocent explanations in the comments below.
Give it your best shots, gang.