Adequacy of the Scotland Act 1998

David Davis Excerpts

Thursday 18th July 2024 Commons Chamber

[Sir David Davis (Goole and Pocklington) (Con)]

Thank you for calling me, Mr Deputy Speaker. I will hesitate for just a second as the Chamber clears—my normal popularity.

Three years ago, on 16 March 2021, I presented to the House the implications of the unlawful Scottish Government investigation and contrived criminal charges against Alex Salmond. I recommended empowering the Scottish Parliament to investigate as a Scottish court found that the Government acted illegally and engaged in a process tainted by bias against Mr Salmond. Regrettably, the investigative committee appointed by Holyrood was limited in its powers of investigation, operated without the protection of privilege and was thwarted at every turn by the delay, obfuscation and even threats from the Scottish Government and institutions of state. Three years on, that failure in democratic accountability has not been addressed.

The investigatory powers of the Scottish Parliament could have been strengthened. Decisions about whether and who to prosecute could have been made entirely independently of Ministers in the Scottish Government. Neither of those things has happened, forcing me to raise the matter again.

Mr Salmond has been found innocent. He previously succeeded in Scotland’s highest civil court in establishing the illegality of Scottish Government actions. He is currently suing the Scottish Government in a civil action. That has been assisted as some of those involved in constructing the case against Mr Salmond are now themselves under police investigation. I will therefore focus today on the wider failings in this sorry case and what they raise for the state of the rule of law in Scotland.

In 2017, senior Scottish Government figures set up a procedure for dealing with sexual harassment allegations that effectively targeted Alex Salmond. I believe that, at an early stage, that was done with the knowledge of Nicola Sturgeon’s team, and potentially with their encouragement. The procedure applied retrospectively to former Ministers—Mr Salmond no longer being a Minister—but excluded civil servants. Sue Gray, then head of propriety and ethics at the Cabinet Office, expressed discomfort with the procedure. Despite that, the Scottish Government proceeded. An investigating officer was appointed. They were to have had no prior contact with complainants, yet the officer appointed, Judith Mackinnon, had in fact had extensive prior contact with the complainants.

It has now also emerged the person deciding the case—former permanent secretary Leslie Evans—also met with complainants during the process. That information was withheld from the Court of Session in one of the many breaches of the Scottish governmental duty of candour in this case.

Mr Salmond was informed of the complaints against him in March 2018. All were denied, and in April 2018 his legal team immediately raised concerns about the fairness and legality of the new procedure as well as concerns over Mr Salmond’s access to witnesses and documents. He offered mediation and arbitration to bring the illegality of the process into focus; it was repeatedly rejected. Messages between two civil servants in early February 2018 show how Liz Lloyd, Sturgeon’s chief of staff, was directly interfering in discussions with complainers ahead of their complaints being made. Her role—acting, we must assume, with the knowledge of her boss—was central to these events.

Furthermore, evidence to the Holyrood inquiry from Mr Salmond’s former chief of staff, Geoff Aberdein, stated that Liz Lloyd in early March 2018 informed him that

“there were two individual complainers”.

Three other witnesses support that assertion. That directly contradicts her claim that she first became aware of the allegations in April 2018, yet it is a claim she doubtless felt compelled to make in order not to contradict Nicola Sturgeon’s position already given to the Scottish Parliament. Sturgeon misleading the Scottish Parliament would, of course, have led to her resignation. The same untruth was repeated on behalf of the Scottish Government during the judicial review. It is the position of Mr Salmond’s legal team that neither Lloyd nor Sturgeon was telling the truth.

Very quickly after my previous debate on these matters, the Scottish police visited me, asking where I had got all this information. They got a nice cup of tea and a biscuit. Strangely, they had no interest whatsoever in what appears to be prima facie evidence of perjury by those holding high office. Let me say clearly today that these matters obviously require to be properly investigated by the police.

In August 2018, ignoring the evident impropriety of the process, the permanent secretary Leslie Evans decided that some complaints against Salmond were well-founded. Salmond was told of Evans’ decision, and that a press release was to be issued at 5 pm. Salmond’s legal team was about to lodge a judicial review of the whole procedure, so it urgently sought—and received—written assurances that no press release would be issued. Despite those assurances, only hours later, the Daily Record published news of the allegations—part of the decision report had been unlawfully leaked. Other than Mr Salmond, only the Scottish Government had that report. However, I have met a witness who has made a statement that he was told by the then political editor of the Daily Record that the story was leaked by Liz Lloyd. The House should know that the prosecutor from the Information Commissioner’s Office investigating the leak concluded:

“I have sympathy with the hypothesis that the leak came from an employee of the Scottish Government.”

The Scottish Government fought the judicial review, at huge cost, despite their own legal advisers telling them in no uncertain terms that they would fail. They were warned:

“it makes little sense to continue to defend the indefensible”

and that the least worst option was to concede the case. Eventually, both the Scottish Government’s external counsel told the Government that they were in an untenable position and were suffering extreme professional embarrassment because of Government failings. They were also warned—this is important—that civil servants were deliberately misleading both them and the court. Despite these repeated warnings, the Government only conceded the judicial review after their external counsel threatened resignation.

In January 2019, the Court of Session found that the Scottish Government had acted unlawfully, and that their actions and processes were procedurally unfair and tainted by apparent bias. Commentators often describe the investigation as “botched”. It was that, and more: it was illegal, pure and simple. Yet no one has been held accountable, and millions of pounds of taxpayer money was wasted. That is perhaps unsurprising when looking at the attitude of those at the top of the Scottish civil service.

The same day that Salmond won his case, the permanent secretary Leslie Evans sent a message to a colleague saying that the battle was lost but not “the war”. That is hardly the language of an impartial civil servant. Senior figures at the top of the Scottish Government appear to have colluded to ensure that Salmond was reported to Police Scotland. There is evidence of contact between figures in the Scottish Government and officers of the Scottish National party. WhatsApp messages reveal that Liz Lloyd was convening a “council of war” WhatsApp group.

A whistleblower revealed communications from Sue Ruddick, the SNP’s chief operating officer that in their words point to

“to collusion, perjury, up to criminal conspiracy.”

In the communications, she and the then chief executive of the SNP Peter Murrell, encouraged and coached complainants into reporting Salmond to the police. Appearing at the Holyrood inquiry in December 2020, Murrell was asked whether he was part of the so-called “council of war” WhatsApp group. Murrell denied even using WhatsApp, yet it emerged that he did have WhatsApp and had used it within weeks of the evidence session. Yet another clear lie.

The House may wonder what the Scottish Government investigation had to do with the Scottish National party in the first place. The answer is provided by Anne Harvey, a qualified lawyer who was then a senior official for the SNP in this House, who wisely refused to have anything to do with what she characterised as a witch hunt.

I recommend colleagues read again my debate on 16 March 2021. In that debate, I outlined the actions of senior officers of the SNP Peter Murrell and Sue Ruddick, and their compliance officer Ian McCann, whose interference in an ongoing police inquiry represented nothing less than an attempt to pervert the course of justice. The Police Scotland investigation was triggered by Leslie Evans, who sent the results of this internal inquiry to the Crown Agent, Mr David Harvie. The Crown Agent is responsible for overseeing all prosecutions in Scotland. Despite the subsequent police inquiry and court case, Salmond was acquitted on all charges by a majority female jury in front of a female judge.

As a result of the Scottish Government’s unlawful handling of the allegations, the Scottish Parliament established a committee to examine how the First Minister, Scottish Government officials and special advisers dealt with complaints against Salmond. Even before the committee’s report was published, the convener said the committee was being undermined by “delay, prevarication and obfuscation” on the part of the SNP Government. When published, the report was damning. It reads:

“Many documents were, in our view, insufficient to provide a complete picture of the events being considered by the committee and again that has hampered the committee’s work”.

There would be uproar if a Committee of this House was impeded in such a manner, but the Scottish Government’s attempts to thwart the parliamentary inquiry did not stop there. It ignored two votes in the Scottish Parliament and waited until the very last minute to release legal advice it had received on the judicial review. That advice was only released the day before Sturgeon would give evidence, after the Opposition threatened a no confidence motion against the current First Minister, John Swinney. Even then, when released, it was not the full advice. Crucial parts were only made available after Sturgeon had appeared. Additionally, the Crown Office was threatening MSPs with prosecution due to the proceedings of the committee. Such threats would be treated in Westminster as a contempt of Parliament.

At the instigation of the Crown Office, Police Scotland opened an investigation after WhatsApp messages given to the inquiry were made public. The messages showed Peter Murrell calling for pressure to be put on the police to investigate Salmond. Throughout this sorry business, the Crown Office has been enthusiastic in its pursuit of those who have published evidence in this case. A journalist has been jailed. Another journalist was prosecuted in a case completely dismissed by the sheriff court. The Crown Office engaged in a legal battle with The Spectator to stop the publication of evidence to the parliamentary committee. What is most troubling is that at the time, the line manager of David Harvie, the Crown Agent who oversees prosecutions in Scotland, was Leslie Evans, the Scottish Government permanent secretary. And Mr Harvie’s legal boss was the former Lord Advocate James Wolffe, who himself was advising the Scottish Government not to concede the judicial review against that same Scottish Government! That set-up is fundamentally wrong. I will outline just one example of why.

On 2 March 2021, Mr Harvie, the Crown Agent, was at pains to tell the parliamentary committee, under oath, that he had never discussed the case with his line manager, Leslie Evans. Now, that may be true. However, what I can now tell the House is that documents show Mr Harvie had, in fact, discussed the matter with Leslie Evan’s private secretary—her representative on earth, if you like—in the days before he became involved in the case. It is fundamentally unsatisfactory that the then Crown Agent, the senior official in the administration of justice in Scotland, cannot be relied upon to tell a parliamentary committee the whole truth. I find it even more unsatisfactory when the Crown Office shows no interest in investigating these grave matters.

In giving evidence to the inquiry, Nicola Sturgeon repeatedly failed to answer questions because she “could not recall”. In the end, the committee found, by a vote of five to four, that Nicola Sturgeon had given an “inaccurate” account of her knowledge of the allegations. In one of its clearest findings, the parliamentary committee found, unanimously, that Leslie Evans was personally as well as corporately responsible for failings that cost the Scottish taxpayer millions of pounds and led to the humiliation of the Scottish Government in the highest civil court in Scotland, due to their unlawful behaviour. Has there been any penalty for those failings? Of course not. Instead, Ms Evans’ contract was extended, along with her pension. The damage she has caused, both by her action and inaction, has been left totally unaccounted for. Something must be done to prevent these failures of accountability in public service in future, and I hope that the “duty of candour” legislation in the King’s Speech means that something finally will be done.

Alongside the Holyrood inquiry, the lawyer James Hamilton was asked to consider whether Nicola Sturgeon had breached the ministerial code during this affair. While Mr Hamilton concluded that Sturgeon did not breach the code, his report was so heavily redacted by the Scottish Government that he, in a highly unusual move, insisted on the publication of a rather stark note along with it. Hamilton said that such redaction

“presents an incomplete and even at times misleading version of what happened.”

I have heard evidence that special advisers—not lawyers—appointed by Nicola Sturgeon had been directly involved in the redactions of Mr Hamilton’s report. I have pursued this point with the current permanent secretary, but I have not received a satisfactory or clear reply.

To obtain further information on the Hamilton report, a freedom of information request was made to the Scottish Government. The Scottish Government refused to publish the requested information, claiming that they did not hold it—despite its being their report. The Information Commissioner rubbished their claim, and ordered that it be published. The Scottish Government attempted to appeal against that decision. I attended the appeal last year in Edinburgh, and noted that the Government case was not just summarily dismissed, but dismissed in a completely humiliating manner. I have brought a number of cases against Governments, and I have never seen quite such an outright humiliating dismissal. Despite these losses, the Scottish Government have still failed to publish the information requested, and now oppose the publication on other grounds.

When I first brought these matters to the attention of the House, Nicola Sturgeon was still First Minister in all her unchallengeable pomp. She is not any more. We all know what has happened to her and the top management of the SNP since. I cannot and will not go into all that now, but that is the important backdrop to this sorry saga. My purpose today has been to concentrate on matters of fundamental principle, so we can ensure that such unlawful and shameful events cannot be repeated.

These events have occurred under the devolution settlement secured under the Scotland Act 1998. The Holyrood parliamentary committee suffered because it did not have adequate power to hold the Scottish Government to account, which allowed it to be frustrated by the Government and threatened by the Crown Office. It is simply not appropriate for the Lord Advocate to be both the public prosecutor and the Government’s legal adviser. I put forward that position three years ago, in my Adjournment debate of 16 March 2021, and was supported by the former Member for Edinburgh South West, Joanna Cherry. Ms Cherry presented a private Member’s Bill that had cross-party support. However, despite the case being conceded in principle by the Scottish Government, no legislative action has followed.

There is also concern about how the SNP’s leadership exerted influence over the rule of law in Scotland, in the Scottish Parliament, the Crown Office and Procurator Fiscal Service, the courts, the police and the media. Nicola Sturgeon is no longer First Minister, but her successors have continued to suppress the truth about their party’s disgraceful attempts to destroy Alex Salmond, and in so doing they have continued to deny him proper redress. However, this is about more than Alex Salmond. To ensure that it never happens again, we must review the consequences for civil servants found to have acted improperly by parliamentary committees, we must strengthen the investigative powers and legal protections offered to Members of the Scottish Parliament, and we must immediately separate the powers of Scottish Law Officers from their roles in administering criminal justice and providing advice to the Scottish Government. It is time to invoke a famous phrase, often invoked in England but just as pertinent in Scotland: fiat justitia—let justice be done.

Before I sit down, may I—in what is otherwise an incredibly serious debate—apologise to the Minister for the fact that my action today forced her to make her maiden speech at such short notice? If I may say so, she carried that off brilliantly, and deserves double points for it.