Devastating new evidence ties Nicola Sturgeon directly to the failure of the judicial review case, showing she continued against the advice of legal counsel and ultimately was responsible for costing taxpayers more than £500,000.
John Swinney has now published more legal advice revealing at least seven new and damning pieces of evidence against the government, just days after the Deputy First Minister claimed that “key legal advice” had already been handed over before Nicola Sturgeon’s Salmond inquiry session.
The latest evidence shows even more examples of the government hiding evidence from their own lawyers and continuing with their case against the advice of Queen’s Counsel.
It reveals that the First Minister and the permanent secretary Leslie Evans both disputed the advice of their lawyers that conceding the case was the “least worst option” a month before they finally conceded. A note said they were “unclear what has changed” despite legal advice from the day before stating they should concede.
When challenged, on 7 December, Roddy Dunlop QC doubled down and told the government that they had two options but “I doubt either will work”. He said one of the approaches was “probably unstatable” and the other had “problems”.
Losing taxpayers’ money by acting against legal advice is a breach of Section 2.30 of the Ministerial Code.
From 10 December, Roddy Dunlop said counsel had grounds to resign. Nicola Sturgeon denied at committee that they had threatened to do so but the new evidence states they considered “very seriously whether we were bound to withdraw from acting” and concluded “we would be entitled to do so withdraw but at this stage are not bound to do so.”
By 17 December, a joint note from both advocates begged the government to concede, warning the First Minister personally against the decision to “plough on regardless” and citing the “large expenses bill” they were running up.
He said that their legal advice had been “discounted”, confirming that the government’s own lawyers feel they ignored legal advice.
Also on 17 December, a joint note suggested the government had not complied with court instructions for six weeks. Despite a judge stressing on 6 November that the government must release documents, Roddy Dunlop wrote that he “could not properly advise the Court that the Scottish Government had discharged its duty of candour.”
The SNP also now claim there are no minutes of the legal consultation on 13 November, which Nicola Sturgeon and the permanent secretary attended personally.
A statable case means only that it meets the minimum requirement to proceed. It does not mean lawyers advise to proceed with the case.
Scottish Conservative leader Douglas Ross said: “These are some of the devastating documents that the First Minister hoped would never get out. The SNP fought two votes in the Scottish Parliament to shut them down and waited until after Nicola Sturgeon’s evidence session to release it.
“It’s beyond dispute that the government hid evidence from their own lawyers and then “discounted” their advice, as Roddy Dunlop QC put it.
“These new documents show Nicola Sturgeon thought she was a better lawyer than Queen’s Counsel. She was emphatically wrong and it cost taxpayers more than £500,000.
“The government was advised to concede a month before they did. Then they ran up an even bigger bill for weeks after they had been told the case was unstatable, the minimum requirement to proceed.
“Their case was doomed from the start but they hid the evidence from their own lawyers, to the embarrassment and utter dismay of Roddy Dunlop QC.
“The fact there are missing minutes from the meeting that Nicola Sturgeon herself attended confirms this is a cover up. Crucial evidence has been hidden.
“The SNP thought Nicola Sturgeon had been exonerated by an evidence session where she failed to answer questions more than 100 times.
“After the revelations of these latest documents, the First Minister’s position is more unstable than ever. These documents are a crushing blow to Nicola Sturgeon’s chances in the Vote of No Confidence.
“We will set out soon how we plan to proceed, considering that John Swinney’s statements this week have been factually inaccurate and he has seemingly still not released all the legal advice, against the will of the Scottish Parliament.”
Counsel said conceding was the “least worst option” (Scottish Government, Joint Note by Senior and Junior Counsel, 6 December 2018, link).
Sturgeon and Evans question Roddy Dunlop’s advice of 6 December that conceding was the “least worst option”. Evidence states: “But the Perm Sec, having been aware of these concerns from the previous notes, the meeting with the FM, other advice from SGLD and on her own consideration of the matters and being fully sighted on the options that arise from these concerns and that advice, is unclear – in effect – about what has changed since the last notes and the FM meeting that leads you to write as you do. I understand that the FM has the same question.” (Scottish Government, Further Note on Prospects, 6-7 December 2018, link).
Dunlop responds that there are only two options and ‘I doubt either will work’. “The problem in this regard is the lack of arguments – hence my concerns. The only options are to argue (i) no breach or (ii) breach but its effect does not vitiate. For those reasons given in the Note, I doubt either will work. (i) is probably unstatable. (ii) faces the problems identified in the note.” (Scottish Government, Further Note on Prospects, 6-7 December 2018, link).
Counsel said their advice had been “discounted”, meaning the government ignored legal advice. On 17 December, a joint note states “We are acutely aware that much of this has already been said, and discounted.” (Scottish Government, Joint Note by Senior and Junior Counsel, 17 December 2018, link).
Counsel warned that they had considered ‘very seriously whether we were bound to withdraw from acting’ from 10 December on. They said they were “entitled to do so” but chose to continue. (Scottish Government, Joint Note by Senior and Junior Counsel, 17 December 2018, link).
Counsel warned the FM personally against ‘ploughing on regardless’. On 17 December a joint note states: “Given the potential for harm we simply wish all concerned – and we include the First Minister in this – to be absolutely certain that they wish us to plough on regardless notwithstanding the concerns which we have outlined.” (Scottish Government, Joint Note by Senior and Junior Counsel, 17 December 2018, link).
Counsel warned of the “large expenses bill that will inevitably arise.” (Scottish Government, Joint Note by Senior and Junior Counsel, 17 December 2018, link).
Six weeks after a judge told the government they had to comply with the duty of candour, their lawyers said they had not. “We reached the view that we could not properly advise the Court that the Scottish Government had discharged its duty of candour.” (Scottish Government, Joint Note by Senior and Junior Counsel, 17 December 2018, link).