With exactly the dire cynicism we now expect as the standard, the Scottish government released a key document on the Salmond investigation two days before Christmas in hopes that it will be buried in the ongoing coronavirus-and-Brexit. related implosion of the UK.
The document, which contains legal advice regarding Salmond’s judicial review of the Scottish Government’s investigation into false allegations of wrongdoing against him, is extremely extensively edited. There are still a few interesting passages left, so let’s have fun.
The December 28, 2018 document is a report by Sarah Davidson, then director general of Organizational Development and Operations, one of those vague job titles that covers a wide variety of sins.
It is officially the document that has advised the Scottish Government to admit the case, on which it had already spent an amount of money at that point that it does not want to reveal to the Scottish public – but which can reasonably be estimated at over half a million pounds as we know that by then Alex Salmond had spent a similar sum on his side of the dispute.
But even with a cursory examination of what little goes unedited, that line falls apart like a used IKEA closet put together by an old blind woman.
Let’s start with this. What’s in here, reader?
What is alleged – and readers can judge for themselves how credible a claim is – is that the Scottish Government’s extremely expensive legal counsel only found out a few days before the court with which Judith Mackinnon had extensive contact with the two Complainants prior to their appointment as investigative officer.
(The two QCs who worked for the Scottish Government were Christine O’Neill, the “junior” counselor, and Roddy Dunlop, the senior, two of the country’s greatest proponents. Alarm readers may remember Dunlop from his successful work with two high-profile people Cases from in recent years on behalf of Alistair Carmichael and Kezia Dugdale.)
So it’s interesting to think about what’s missing. (We don’t actually know how long the editorial offices take, because they are all due to “[Redacted]”Instead of being obscured. They can be a single word or a dozen paragraphs.)
The most obvious would be a word like “honest”, but why would anyone want to edit that? Likewise, there is no reason to edit something like “in the opinion of the lawyer” and it is very difficult to plausibly add something to this sentence that could identify someone whose identity is being kept secret.
The only reason to ignore something, if it is in any way incriminating, is how – and we stress that this is purely illustrative speculation on our part – “contrary to what the Scottish Government has led to believe”.
It is perhaps worth mentioning in passing that the word “instat[e]able ”is one with a very special meaning for anyone who practices law. Basically, this means that if you intentionally hide evidence from the court or misrepresent anything about the case, or allow your client to do so, you will be beaten off.
So make your guesses folks. We call this blank 1.
Well, nothing is actually edited in the above paragraph, but something is definitely missing. Who, the casual reader may ask, has failed to be adequately “systematic and comprehensive” about their “duty of openness” in order to adequately inform the legal counsel the Scottish Government is shoveling their money into? Who was responsible for this process? Who designed it and who made it?
We imagine that it was these people:
(We know that because of the use of “stock” instead of “shares” there is more than one.)
We will name that Empty 2.
The next part comes under “SUMMARY OF COUNSEL’S ADVICE”.
This is helpful. We do know, however, that the December 19-21 parts refer to what is known as the “turning point”. At that point it was no longer possible to deny that the game was over. So what happened on and before October 31st?
We know the Scottish Government’s attorney gave advice on this case during this time as this was edited above. And luckily, the document describes what it was in greater detail.
Okay, not in much greater detail. But we learn that SOMETHING was revealed on October 19th, and that it was something that everyone knew was important and needed to be disclosed. That unveiling didn’t officially take place until December 19 and 21, two months later.
So let’s speculate once again. We know the Scottish Government is trying to hide this because it has been redacted. For example, imagine that on October 19 the attorney knew full well that Judith Mackinnon was in close contact with the complainants and had advised the Scottish Government that this had completely torpedoed the case.
It is not unlikely that they did not know because if they did not then the Scottish Government wasted a ton of money without telling their very expensive representatives things they really needed to know in order to come to their advice. But we can’t tell you with certainty at the moment, that’s why we’re only talking hypothetically here – let’s name it Empty 3.
But if that is hidden, why shouldn’t the Scottish government take this advice and instead burn public money for a few more months? Perhaps this paragraph contains some pointers.
It may or may not be important to remember that in December 2018, when this report was produced, Salmond had still not been charged by the police – it wasn’t until mid-January 2019.
Had the Scottish Government been advised in October that their prospective case was untenable in judicial review, their last hope of avoiding either an embarrassing defeat or an almost equally embarrassing rise would have been when some other event overtakes judicial review and should have been deferred. Events such as a criminal prosecution purely illustrative.
Was the Scottish government advised to open the case in October 2018, but stood and spent in hopes of pulling it out until a criminal prosecution completely removed judicial review? This document does not tell us.
But such a strategy would likely have been rather poorly received by their legal advisors, whose hard-won reputations would be at stake if asked to present such a ridiculous case to a high-ranking judge like Lord Pentland.
(And we know it was a ridiculous case because Alex Salmond was awarded costs on the almost unprecedented “agent and client” basis, reflecting the court’s anger that his time was being wasted.)
Does anything in the document tell us how the lawyer was feeling?
Indeed, the short, innocuous-looking paragraph above is probably the most explosive unedited disclosure in the entire document. It is said that the Scottish Government’s lawyer gave him an ultimatum – “Admit this case or we will give up”.
Such a step is almost unknown. If a pair of QCs walk away from a customer instead of being humiliated (or worse) in court, it would be an earthquake-sized event – especially if that customer was a government.
And yet it is here, in unedited black and white. The Scottish Government attorney could no longer stand the case they were due to bring to justice and was forced to threaten his own client.
(Dunlop may have been pretty stung after repeatedly and painfully apologizing to the court for being misinformed by his employers.)
Yet we are expected to believe that these learned folks, charging hundreds or thousands of pounds an hour, have been taken away at public expense for months without learning absolutely vital facts known to everyone else and their dog was involved.
It is not difficult to understand why this document was published two days before Christmas. But as I said, we are only guessing what all the parts that we are not allowed to see might contain. Perhaps, as a light-hearted festive parlor game, readers could make more innocent statements in the comments below.
Do your best, gang.