There never has been a clearer case made out for the utility of law and lawyers than the so-called Salmond Inquiry in the Scottish Parliament. The 'Committee on the Scottish government handling of harassment complaints' to give it its correct title, has thus far failed to unearth the truth about the machinations within the Scottish government quite simply because it isn’t equipped to do so. Inevitably there is strong suspicion that this Committee was given the job precisely because it would have insufficient expertise or powers to investigate adequately.
Committee members appear to have worked extremely hard at carrying out their task. But without counsel to their inquiry, indeed not even a legal assessor assisting them, they have no chance of digging to the bottom of this murky affair. The revolving door system for many witnesses is just pathetic. The witness gives evidence; the Committee subsequently discovers that it’s nonsensical and so recall that witness – in some cases more than once.
In Glasgow Sheriff Court where I used to practise as a boy lawyer, these witnesses would have been locked up for prevarication at best. Some might be facing perjury prosecutions. The fact that people in very senior positions are advancing at best amnesia and at worst idiocy as explanations for questionable aspects of their evidence makes one wonder if we have in Scotland a 'team of total diddies' at the top.
The discovery that £50,000 of public money was spent by the Scottish Government on 'coaching' these witnesses before they appeared before the Committee is hugely suspicious.
Perhaps the biggest hint that this whole inquiry was to be a farce was the arrangement whereby it only sits on Tuesday afternoons. How effective can it be if it can only sits in such a bizarre intermittent fashion? Undoubtedly this government-imposed schedule is aimed at making sure that its Report is much delayed.
The First Minister’s assurance at the outset that her government would do all they could to assist the inquiry has proved to be an empty promise. The all-too-obvious truth is that her government has made Herculean efforts to frustrate it at every turn.
To us lawyers, of course, the most absurd aspect has been the claim from Sturgeon and her deputy John Swinney that it is impossible for them to afford the Committee sight of the legal advice given to the Scottish government in respect of the Salmond matters. It is confidential and so can’t be divulged, they protest. What utter nonsense. They, the Scottish government, are the client and can waive the privilege attached to the legal advice whenever they choose. In advancing such an absurd explanation for secrecy they must take the view that the Scottish public are exceptionally dense and will believe this.
Another odd part of these proceedings is the legal approach taken by James Wolffe, the Lord Advocate. He has appeared in front of the Committee and made the assertion that for anyone to produce the documentary productions (originals or copies) from Salmond’s criminal trial would amount to a crime and they would be prosecuted for so doing. Salmond says he must have some of these documents in order to give his evidence. That’s why he has been slow to appear before the Committee.
Now I would not pretend to have anywhere near the erudition of Mr Wolffe. But I have never heard of such a rule of law. The criminal trial is completed and can’t be reopened. What possible crime can be committed by a legitimately constituted Parliamentary inquiry seeing these documents, which on any view, not just Salmond’s, must be pertinent to the work of the Committee?
If the Lord Advocate is relying on the terms of S.162 and 163 of the Criminal Justice and Licensing (Scotland) Act 2010, I respectfully question if he is correct. Firstly, S.162 doesn’t appear to cover the accused’s productions. Secondly, I can’t believe that this Section completely prohibits criminal trial productions from legitimate use in other proceedings.
In short, that would be absurd, and would create an impediment to proper inquiry in other proceedings. In all court proceedings, and even in Parliamentary inquiries, the aim is to discover as much truth as possible. These Sections can hardly have the purpose of frustrating that aim. They have to be interpreted accordingly.
This move to keep the criminal productions secret has nothing to do with the identification of the female complainers in the Salmond trial. That can be coped with easily. This is something I can claim to know about. I advised the BBC and also many newspapers for years, and simple editing techniques will overcome this problem. So that cannot be prayed in aid as an excuse for keeping these documents from the Committee.
After seven months of its existence, the Committee decided on 22 January this year to use Section 23 of the Scotland Act to try to force the Crown Office to disclose inter alia documentation from the criminal trial. So we have now have the prospect of the unedifying spectacle of one arm of the Scottish government being improperly pressurised by senior figures on the political side of that same government to keep the requested documents from the Committee at all costs. The Stalinist way, after all, is the SNP modus operandi.
Presumably the underlying intention in the Salmond saga is that the Committee will be unable to say very much about anything because it will never see the most telling pieces of evidence. That evidence, certain politicians fervently hope, will remain under wraps in the control of the Scottish government.
At a time when the processes of democratic states are being tested and reviewed all over the world, Scotland has shown that it simply isn’t 'up there' and in the running. Of course, as an independent nation Scotland had no democratic traditions. Still, one might have hoped that the passage of time would have made Scotland’s political leaders aware of the advantages of a proper constitutional setup. But the experience of the Salmond inquiry demonstrates that Scotland remains firmly in the Dark Ages. It’s perfectly plain that our leaders are very frightened that the truth might emerge here. We are entitled to ask why.
A version of this article was originally published on Scottish Legal News