Records of meetings between Nicola Sturgeon, permanent secretary Leslie Evans and the Scottish Government’s legal counsel about the investigation into Alex Salmond cannot be found, John Swinney has confirmed.
The deputy first minister has told the Holyrood inquiry into the government’s unlawful investigation of Salmond that he is unable to provide details that the committee had asked for.
Swinney, who is facing a vote of no confidence after refusing parliament’s demands to release legal advice for almost four months, had said the government did not record minutes of meetings with its external counsel about the former first minister’s ultimately successful legal challenge.
Sturgeon and Evans, Scotland’s most senior civil servant, held meetings with external legal advisers about the judicial review on November 2 and November 13, 2018, according to evidence provided to the committee.
MSPs have asked for official records of the meetings, but Swinney insisted the government “have not identified any record of minutes having been prepared or previously held”.
He added: “Officials have identified a small number of contemporaneous email exchanges referencing these meetings.
“This includes exchanges following the meeting on November 2 and emails ahead of the meeting on November 13, 2018, attended by the First Minister and permanent secretary.
“These exchanges make clear that the focus of the meetings was on discussing and agreeing with external counsel adjustments to the pleadings for the judicial review. ”
Swinney said the government would “urgently” make checks on court orders and data compliance and then try to publish the email exchanges “as soon as possible this week”.
The committee is meeting on Tuesday morning to discuss the legal advice, and whether it has sufficient information.
A motion of no confidence in the deputy first minister is expected to be debated in parliament this week.
When Swinney first confirmed on Friday that no minutes could be found for the November meetings, Scottish Conservative MSP Donald Cameron said: “I’ve acted as counsel for the Scottish Government. At consultations, everyone takes notes.
“It is inconceivable these minutes don’t exist.”
The government’s lawyers had already warned ministers of difficulties with the case prior to the meetings, with papers showing on September 26 2018 senior and junior counsel advised of a “real risk that the court may be persuaded” by a legal challenge “attacking various aspects of the investigation process”.
By December 17, however, Roddy Dunlop QC and Solicitor Advocate Christine O’Neill said they were “firmly of the view that at least one of the challenges mounted by the petitioner (Mr Salmond) will be successful”.
They added that “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” with the defence of the case.
The Scottish Government conceded the case in January 2019, with the Court of Session ruling it had acted “unlawfully” in its handling of the complaints.
Holyrood’s Committee on the Scottish Government Handling of Harassment Complaints had also asked Swinney about any external legal advice received after the Lord Advocate wrote on December 31, 2018 about conceding the case.
Swinney said that although there had been “extensive engagement between counsel and Scottish Government lawyers” in early January 2019, there were no formal written notes.
Scottish Labour deputy leader and committee member Jackie Baillie said: “This letter is the latest example of the obstruction that this committee has faced from the start.
“This drip, drip, drip of partial information, at the last minute, is simply unacceptable.
“The idea that no notes were taken of several important meetings with counsel, including one with the First Minister and Permanent Secretary, is frankly laughable.
“It would have been nothing short of professional misconduct for those involved not to take notes. The Scottish Government need to stop the secrecy and pass over all the legal advice or people will think they have something to hide.
“If the material requested by the committee is not forthcoming, we will have no choice but to back a vote of no confidence in John Swinney.
“The committee needs access to all the material so far withheld, and it needs access to it now.”
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