Sunday 21 March 2021

The most ignorant woman in Scotland


Years back, before we all fell out over the referendum, there used to be an event a couple of times a year called a “Twinner”. This was an evening where Scottish political bloggers of different persuasions would meet up for a meal and a drink (alright possibly more than one drink).

It was always a good night. A fair bit of good humoured political debate, a sharing of political intelligence and a lot of outright gossip.

In that context, back in 2012, a well connected Nat told me Alex Salmond was a groper. This was complete news to me. I had always thought of him as a man with a one track mind. But that was not the one track. I would have been as equally surprised if one of the Tories had confided that Ruth Davidson was a Satanist.

Anyway, some months later I was in exclusively Labour company when I thought to pass this juicy tit bit on to someone who had been very close to Jack McConnell’s Administration. Her reply surprised me. “Everybody knows that”.

Now, when you look back at the immediate aftermath of the infamous Daily Record leak that, following a previously secret Scottish Government investigation process, Salmond was to be referred to the Police, the interesting thing is that, within the Scottish political bubble:  politicians; their staff and numerous Scottish political journalists, while many were shocked matters had reached that degree of seriousness, no-one was entirely surprised.

And against that background let’s look at what we know today from what has come out as a result of the Holyrood Committee of Inquiry.

We know that the decision to allow retrospective complaints against former Ministers was a political rather than civil service decision.

We know that it was not retrospective against former civil servants as their Unions would never have agreed to that.

We know that it was however made retrospective in relation to former Ministers without consulting them or even informing them! 

We know it was put in place with unprecedented speed.

We know that this retrospectivity decision happened literally the same week as Sturgeon says she first learnt of the Edinburgh Airport allegations, despite them relating to events some ten years before and acted upon, of sorts, by Angus Robertson at that time.

We know that Sturgeon's husband is Chief Executive of the SNP and it is literally his job to know what's going on within the Party yet, if he is to be believed, he not know anything about the rumours about Salmond as anything other than (I rely on recollection here but I think this is right) "tittle tattle" and even then tittle tattle he saw no reason to pass on to his wife, even as tittle tattle. 

We know that the woman who alleged Salmond had attempted to rape her in Bute House told the senior SNP official Ian McCann of her alleged experience at the time (pre the 2014 referendum) and yet we are expected to believe he did not tell Mr Murrell, his boss, or, if he did, Mr Murrell not tell his wife.

We know that the civil servant who complained (at the time, again prior to the referendum) of what gave rise to the assault with intent to rape charge received an apology, again at the time, from Mr Salmond. 

We know that others were concerned as to the impact on the Yes campaign if her complaint became public. 

And today we also know something else. The two civil servants who made the original complaints gave evidence, quite properly behind closed doors, to the Holyrood Committee on Monday past. They said, and here I quote from the Sunday Times, that (again in 2013/14) concerns about Mr Salmond’s behaviour were an open secret.

Yet we are expected to believe all of this happened without the deputy leader of the SNP and Deputy First Minister, having the faintest sniff of anything. Despite me (me!!!) having been told of it in an Edinburgh Pub years before. Until, apparently, she learned of the Edinburgh Airport incident in November 2017 and, despite complete previous ignorance of the above other matters, Sturgeon felt this, which would by her account have been wholly out of character behaviour by Mr Salmond, and ten years before in to the bargain, might nonetheless be something she should be worrying about.

I have said nothing above which is not in the unchallenged public domain.

It is, and I use this word advisedly, inconceivable that the only person in Scottish politics who did not anticipate that a retrospective process of investigating sexual misconduct by Ministers would probably ensnare Alex Salmond was Nicola Sturgeon. Yet she went ahead anyway. That actually might be to her credit, if she would only admit it. But she can’t. Not because she ever approved of it but because, in pursuit of a bigger prize, she turned a blind eye to it at the time.

As did an awful lot of other people. Nationalism causes you to lose all moral compass. And, having lost it, you can’t get it back.  

Those who fly with the Craws will ultimately get shot with the Craws. Sturgeon will survive next week because a lot of other people who similarly lost their moral compass will rally round. But if she survives May 6th Scotland will no longer continue to be the Country I believe it still is..




Sunday 14 March 2021

A complete waste of time

James Hamilton QC is the independent adviser to the Scottish Government on the Ministerial code. I pointed out on twitter on Friday that in that capacity he has been investigating Nicola Sturgeon since 13th January 2019. That is undoubtedly true but, on further inquiry, that is not his fault. 

Salmond's Judicial Review was conceded on 8th January 2019. It had nothing to do with any undisclosed meetings Alex Salmond had with Nicola Sturgeon while the process successfully challenged was undergoing. That formed no part of his case. But these undisclosed meetings were revealed by it. It was only when that revelation happened that Sturgeon felt obliged to refer herself. Not when ,at a much earlier stage Sturgeon coughed up officially to the Permanent Secretary. Who interestingly seems then to have replied: "That's fine, you've told me now", as opposed to: "Thank you. You will appreciate this raises very serious issues under the Ministerial Code about which I will need to seek the advice of my superiors". One suspects the word "officially" that I use above might have been key here.

Anyway, to be fair, five days after Salmond's case was conceded (in this context I reject the usage "was won", as that implies a contest that at an earlier stage might have gone either way), Sturgeon apparently placed herself at the mercy of an independent authority.

Except, almost immediately again, she didn't. 

For ten days later, that process was completely shut down.

On the ostensible basis that since Mr Salmond had been charged and appeared in Court, it could not proceed. 

In the course of my investigations for this blog, I have stumbled upon this.

It is the correspondence between John Swinney and Mr Hamilton regarding the referral. In common with the obfuscation the Scottish Government has displayed throughout this matter it is disclosed in random order, sometimes jumping backwards and forwards not just over months but over years, to make it as hard to follow as possible but somewhere in the middle are two nuggets. 

The first is an exchange of emails on 30th January 2019. Published in the wrong order "entirely by accident".

So you have to start with the second. James Hunt, a Civil Servant whose impartial role in this whole matter would bear further attention, writes to Mr Hamilton suggesting that it might not be possible for him to carry things forward for fear of prejudicing the criminal proceedings now commenced against Salmond. He says, crucially, for no matter what you think of senior civil servants, when it comes to matters of this nature, they choose their words carefully 

"The Crown Agent has not provided us with legal advice on the matter. However, nor could he provide us with any reassurance that there would be no risk of prejudice to the fairness of the criminal investigation were the Independent Advisers to proceed with an investigation in terms of the draft remit I previously sent you, and which I attach again to this letter. In light of that view, we have considered whether it might be possible to revise the remit to minimise any possible risk to the criminal investigation. We have concluded that reducing the scope of the remit would unduly restrict the ability of the Independent Advisers to investigate fully the questions of conduct that have been raised. Neither could we be sure that even a restricted remit would not have the potential to interfere with the criminal proceedings in some way. We therefore need to balance the public interest in proceeding with a referral that was broad enough to address fully the concerns that have been raised, with that of ensuring that there is no risk of prejudice to the fairness of the criminal investigation."

Now let us deconstruct this. The Crown Agent has expressed no view on whether Mr Hamilton can proceed.  But the Scottish Government, with or without taking legal advice, have decided he can't. I very much suspect without.

Anyway, back to Mr Hamilton. He responds that he doesn't know anything about the law of Scotland. But in a fatal error he says he will abide with the legal advice of the Scottish Government. Except they do not have such advice. Reading the small print, do not even claim to have it. 

Just to be in no doubt, there is every reason Mr Hamilton could have started his, in private, inquiries, while the prosecution was continuing. He could have spoken to all of the people involved in the process whereby Sturgeon failed to disclose her meetings and then failed to take any action when she finally did. That had nothing whatsover to do with the prosecution. Clearly, he could not have concluded these inquiries because Mr Salmond, on any possible legal advice, would have declined to speak to him while the criminal process was ongoing but, once that had concluded, he could have had a significant head start in reaching his conclusions. But of course he is denied that opportunity.

So, anyway, nothing now happens until Salmond is acquitted. Not an event the Scottish Government anticipated.

So, at least now, Mr Hamilton could get started. Except he couldn't.

You will recollect that Mr Salmond was acquitted on the very day the first lockdown was announced. Anybody would concede that for a period thereafter normal functioning of government was significantly disrupted. But Mr Hamilton's inquiries were a perfect example of something that could have been progressed "working from home". They were to be conducted in private and , indeed, when they did start have so been. But Mr Hamilton could only proceed if, once again, asked to do so. Which he eventually was. But not until the 20th July 2020, some four months after lockdown. Prompted, to his credit, largely by himself. Which brings me to the second nugget. If you read the email whereby Mr Hamilton insists on getting restarted which is on the link above, you will see it is against a background of the permanent government suggesting there is no need for him to be so hasty, or possibly even undertake the task at all. 

And then, in the final email of this thread  Mr Hynd advises that " I am working on putting in place admin and legal support for you." Which is of course something that could have been sorted eighteen months before but has the additional, I am sure entirely inadvertent, consequence that Mr Hamilton, even now, can't get on with his inquiries. And, standing their on the record delay and obfuscation in providing information to the Parliamentary Committee, does anybody think the Scottish Government will have been swift and entirely open in their co-operation with Mr Hamilton? Pull the other one, it's got bells on

So what is the point here? It is that 26 months after he was asked to report, Mr Hamilton has still not done so. And in consequence of that, Mr Hamilton's report,  even if the most damning terms, will have no consequence for Ms Sturgeon. She might be expected to resign, but she won't. She will make the not unreasonable point that this is hardly a practicable step six weeks before an election. How could the SNP possibly carry out a leadership election in that period? And if they don't have a clear candidate for First Minister, how can they possibly fight an election? No, Ms Sturgeon will instead announce,  that her ultimate jury will be the electorate. As has clearly been her strategy throughout. She will peril everything on that. If she wins the election she will announce herself to have been vindicated and if she loses she will have to resign anyway. So, if we want rid of Ms Sturgeon, we are going to have to do it ourselves. 

Quintus Fabius Maximus would be proud of her. 

Sunday 7 March 2021

An anecdote

 I've been speaking to a few journalists about the Salmond inquiry. I spoke to one this morning and it was that conversation which has prompted this blog.

If you are a lawyer, you assume everybody else knows what you know about the law. Although if you think about it for five minutes, it is as well they do not. Or you'd be out of a job. 

There seems to be a fundamental misunderstanding about how unprecedently the Salmond civil court case proceeded. For a public authority to be faced with an actual commission is pretty unprecedented but for them, only then, to disclose the existence of certain documents critical to their case is, I suspect, entirely unprecedented. But that is what, now by express admission, happened here.

But it became clear that my interlocutor this morning, one of those who has reported this matter in great detail, didn't fully comprehend that. Yet any lawyer of any political conviction and none would readily confirm that. 

So here is a brief explanation of what happened. What is a Commission? It would have started with what is known is a Specification of Documents. A Specification of Documents is an order of court made, on the application of any Party, for the production of documents held by either the opposing Party or by a third Party.  

Such developments are a routine part of many court processes. I will try a brief example. A bog standard tripping claim. Man trips on a pavement pot hole, claims it damaged his knee, caused him to be unfit for work for six months, losing earnings, and sues the Council. This might routinely generate three specifications (if required). Firstly the Pursuer would seek details of any inspection reports regarding the pavement, any record of complaints regarding it's pre accident condition and, if the very existence of a pot hole is denied, any record of repairs between the alleged date of the accident and the raising of proceedings. Secondly, he would seek from an unwilling to be bothered employer details of pre and post accident earnings to enable him to establish his wage loss. Thirdly, if the defender's are suggesting  he is attributing to this fall symptoms that long preceded it, they would seek an order for the production of his GP records. 

Except the first and third of these would almost certainly not happen because the lawyers on either side would know that a court would grant such an order so would lodge all relevant records in advance of being ordered to do so. I'll avoid going down the rabbit hole of the protocol at this point. 

At this point we'll also forget the middle spec (that's what we call this) and move on to the Council having lodged their records but the Pursuer not believing them (in good faith or otherwise) to be complete.

A motion is lodged and granted requiring the production of all records. At this point I'll try to move forward quickly, skipping the voluntary procedure bit., a Commissioner is appointed. Who is a Commissioner? A Commissioner is a lawyer vested by a judge or sheriff with the powers on their behalf to take evidence on oath from a haver. A bit like a deputy sheriff sworn in in a Western. And who is a haver? A haver (pronounced hayver) is a person who might be in possession of relevant documents.

The Party still seeking documents then cites any persons he believes might be in that position to attend a "Commission" and give evidence on oath before the Commissioner as to the extent of their knowledge. A Commission being a deputised Court and false evidence at that point having the same consequence as false evidence to a court.

Now at this point for the sake of brevity I want to skip forward to an actual case  litigated twenty plus years ago by a pal.  His client had sustained an injury on an open stank in a Glasgow public park. The council did not deny that fact but maintained that the first they were aware of the defect was when the claim was lodged, so negligence could not be proved. But the client had an ace. Local gossip alerted him to a woman who claimed to have reported this months before when her son's bike had been damaged at the same point.

So the voluntary procedure having failed to disclose that, a  Commission was aimed at getting that report. In advance of the Commission a request was made to the council for the details of the park inspector so that they could be cited. The response was the inspector no longer worked for the council. Further correspondence as to their home address ended with an offer from the council to concede the claim. So my pal phones his opposing lawyer and is told, off the record, that it transpires the inspector has been invited to resign (this is local government after all) for repeated failures to record or act on complaints. 

So what is the point of this anecdote? 

Well firstly, that junior employees are sometimes useless. And, secondly, more senior management are not necessarily aware of the detail. And, thirdly, generally, when the truth comes out, more senior management do comprehend the idea of being public servants.

But most importantly, even in this most minor of matters, that letting this matter proceed to a Commission where their employee would be destroyed as, at best, useless and at worst, a  liar,  by an even  reasonably competent solicitor (sorry pal), was not something that Glasgow Parks Department were prepared to contemplate. But the Permanent Secretary of the Scottish Government was. Even knowing her employee would be cross examined by some of the best lawyers in Scotland.

Difficult to see that was for any reason except to buy time. Odd call by a politically independent civil servant.