A mess to embarrass the architects of devolution

Heady ideals look distinctly tarnished when following every twist and turn of what has been dubbed ‘The Alex Salmond Affair’.

A mess to embarrass the architects of devolution Getty Images

Open, accountable and transparent. These are the watchwords that heralded the advent of Scotland’s new democracy in 1999.

These heady ideals look distinctly tarnished when following every twist and turn of what has been dubbed ‘The Alex Salmond Affair’.

It is regrettable that the personality of the former first minister looms large. Some of the issues at the heart of this should not be lost or viewed through the prism of whether you approve or disapprove of Mr Salmond. Issues not personalities are what counts.

From the forming of the Scottish Governments harassment procedures, to the Court of Session declaring them unlawful, to the subsequent criminal prosecution of Mr Salmond through to the current procedural torture chamber that is the Holyrood Committee probing those procedures, this is a sorry tale that has not been the finest hour for openness, accountability and transparency.

Supporters of Mr Salmond have another word for all of this, they call it ‘corrupt’. Salmond himself this week accused the Crown Office of not being fit for purpose. That charge, from a former head of Government is unprecedented and despite his bent for an eye catching headline, it is not a charge Salmond would have made lightly.

On unrelated matters in recent weeks the Scottish Conservatives have used the word ‘corrupt’ in relation to some prosecutions. The office of Lord Advocate is under scrutiny and indeed assault by question as never before. I have no problem with that, it is called accountability to Parliament.

James Wolffe QC told MSPs the other week some prosecutions related to the administration of Rangers FC in 2012 were ‘malicious’. The public purse has haemorrhaged tens of millions of pounds in damages to citizens Wolffe says should never have been prosecuted in the first place.

Lord Tyre in another civil case last week said the prosecution of Mr David Grier proceeded without ‘probable cause’. This, the biggest scandal ever to hit the Crown Office in my lifetime, occurred in one of the world’s oldest legal systems in 2021.

And if that wasn’t enough, the intervention of the Crown Office on Monday night led to the Scottish Parliament’s Corporate Body redacting evidence from Mr Salmond that he was meant to speak to today at the Holyrood committee.

This is despite the fact the contents of his submission has been in the public domain and indeed has been widely published. I am tempted to ask why the Crown Office chose to have the Corporate body redact passages freely published elsewhere?

The constitutional optics don’t look good. The Lord Advocate is a member of the Cabinet which is of course a political body. When the devolution legislation made its way through the House of Lords in 1998, the late Lord McCluskey warned of the dangers of having a Law Officer being seen to be too attached to the Executive arm of Government.

That Law Officer was ultimately responsible for giving legal advice to the Government on the harassment procedures. That Law Officer was also ultimately accountable for Mr Salmond’s prosecution and for the subsequent attempts to have his views redacted before a Parliamentary Committee. Censored is another word.

For the avoidance of doubt I make no charge of impropriety against Mr Wolffe. Having known several Lord Advocate’s I know that they take their independence very seriously in the prosecution of crime and in making decisions free from political interference.

Indeed today, in a nervy address to MSPs, Mr Wolffe said the sole reason for the intervention of the Crown on Monday night was to protect the identification of witnesses although he simply ignored pointed questions about how the decision to write to the Corporate body crystallised. He was clear that there had been no political interference in the decision to intervene.

He was ‘not getting into the substance of issues’ he told Parliament this afternoon. That will not impress MSPs who believe the actions of his office has frustrated the work of a Parliamentary Committee.

However, Lord McCluskey’s warnings that the independence of the office could be seen as compromised by ties to politicians is an interesting one in this context. Today the Lord Advocate also made the point that both pre and post devolution the holder of his post has always been a member of the Government.

The Lord Advocate has had a locus at key stages of this long timeline. That is an uncomfortable place for any Law Officer when the intervention of his office is seen as key to the defence and credibility of a Government’s position. That being said Mr Wolffe was clear today that he offers advice without fear and no politician has ever tried to compromise his role.

Another cardinal principle in the separation of power stakes is that politicians should refrain from becoming embroiled in controversy relating to criminal prosecutions, since that is a matter for the Crown Office and the Courts.

At her Covid briefing today the First Minister, I would suggest, stretched that principle to breaking point. Of Salmond’s acquittal she said this, ‘Alex Salmond is innocent of criminality, that doesn’t mean the behaviour they claimed of didn’t happen. It is important we don’t lose sight of that’.

A prosecution has occurred and a citizen has been acquitted by a jury of fellow citizens listening to all of the evidence. And yet nearly a year after the acquittal of that citizen, the First Minister believes ‘that doesn’t mean the behaviour they claimed of didn’t happen’. That view, with respect to Nicola Sturgeon, is precisely why we have Juries. This forage into Mr Salmond’s acquittal wasn’t really wise.

Alex Salmond believes he has evidence that establishes a conspiracy to have him prosecuted for essentially political reasons. Today his successor called him and his supporters out, calling the conspiracy viewpoint variously ‘wild, untrue, false, baseless’.

She said that the preference for Mr Salmond is to make claims and not have them scrutinised and she urged him to give evidence to the committee. That evidence will now be given on Friday.

Mr Salmond has won in the Court of Session and been acquitted by the High Court of Justiciary of serious criminal charges. The end game for him is the salvaging of his reputation and the airing of what he believes is an abominable conspiracy.

I am certain that the findings of the parliamentary inquiry and indeed the separate probe of James Hamilton QC on whether the First Minister is in breach of the ministerial code are unlikely to deliver the redress that the former First Minister seeks. I equally doubt however that both probes will be the final word.