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. https://www.gov.scot/publications/foi-202100139181/
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.