Nicola Sturgeon received legal advice that her Government would lose in court to Alex Salmond months before blowing £692,000 fighting his judicial review.
Scotland’s most senior lawyer Roddy Dunlop QC was asked for an opinion on the former first minister’s challenge to a sexual harassment probe in October 2018, the Sunday Mail understands.
Sources have confirmed his response was that the former SNP leader would be likely to win. But the Scottish Government rejected the advice on October 31 and forged ahead with the case – before conceding in January 2019 at a huge cost to taxpayers.
Labour has said Sturgeon’s decision not to end the legal fight after receiving the advice could represent a breach of the Ministerial Code, as she has a duty to uphold the administration of justice and comply with the law.
Salmond had the result of the harassment probe against him quashed after a judge ruled it was unlawful and “tainted by apparent bias”.
It was discovered that Judith Mackinnon, the lead investigating officer for the Government, had been in prior contact with the two complainers.
The public were forced to pick up a £512,000 bill for Salmond’s legal fees along with a further £180,000 that ministers spent on their own lawyers.
FM Sturgeon and Salmond are set to give evidence to a Holyrood committee investigating the debacle.
Sturgeon is facing calls to quit if the Ministerial Code was broken and a furious battle is raging within the SNP over
allegations senior figures conspired to bring down her former mentor.
Ministers have repeatedly refused to publish the legal advice given in the run-up to the judicial review, claiming it would not be in the “public interest”.
However, a source close to the case said: “The Scottish Government paid for Roddy Dunlop’s legal advice using
public money and were told that, on the balance of probability, the case would be lost. It’s astonishing that, despite this, they went ahead at huge expense to the public purse only to lose in humiliating fashion.”
Scottish Labour justice spokeswoman Rhoda Grant said: “If this is true, it puts the Permanent Secretary and First Minister in a very difficult position.
“To have pursued the judicial review against external counsel’s opinion is a potential breach of the Civil Service Code and the Ministerial Code. They were happy to pour taxpayers’ money down the drain in order to pursue a policy that was clearly flawed and tainted by bias.”
Tory MSP Murdo Fraser said: “The SNP Government’s arrogance in relation to this case is extraordinary.
“They knew fine well that their case was doomed, yet ploughed on regardless, costing the public over half a million pounds. Their reckless attitude not only cost taxpayers but completely failed the courageous women involved.
“Their failure to be open and transparent over their legal advice is why the Scottish Conservatives have twice got the backing of the Scottish Parliament for the SNP to release this advice urgently.”
A Scottish Government spokeswoman admitted an “issue emerged” when asked if Dunlop had advised the case would be lost. She added: “The Committee has received both written and oral evidence, including from the Lord Advocate James Wolffe, explaining clearly the legal position taken by the Scottish Government throughout the judicial review.
“As the Lord Advocate set out in his evidence, when the judicial review was first raised, the Scottish Government was satisfied that it could answer all of the grounds raised by the former first minister in the judicial review. The issue on which the case was ultimately conceded only emerged over time from late October into December.
“The case was conceded as quickly as possible once it became clear that it could no longer be defended on the single ground of perceived bias.”
Dunlop succeeded Gordon Jackson QC – who represented Salmond in court – as Dean of the Faculty of Advocates last April. Dunlop threatened to withdraw from the Government’s legal team unless it collapsed the case against Salmond.
He and Junior Counsel, Christine O’Neill QC, were preparing to make the move “in light of their professional duties” 11 days before the Government admitted defeat.
After his victory, Salmond was charged by police with 14 offences including two attempted rapes, nine sexual assaults, two
indecent assaults and one of breach of the peace.
He was cleared of all charges on March 23 last year after a two-week trial at the High Court in Edinburgh.
The fallout from the case is ripping apart the SNP and threatening to bring down the Government.
Sturgeon has been accused of breaching the Ministerial Code by misleading Holyrood over what she knew and when.
The SNP leader is facing further allegations over meeting with Salmond at her home, which should have been recorded if
they were to discuss Scottish Government business rather than party affairs.
The Sunday Mail understands text messages which have not been released show one of the meetings was set up by a senior Scottish Government employee.
Sturgeon initially told Holyrood she first heard of the sexual misconduct complaints against her predecessor when they met at her home on April 2, 2018.
But it later emerged that she discussed the allegations with Salmond’s chief of staff Geoff Aberdein in her Holyrood office four days earlier.
Sturgeon has said that she “forgot” about the encounter with Aberdein.
Kenny MacAskill, SNP MP for East Lothian, has alleged text messages are being suppressed which show a group hostile to Salmond discussed how they could encourage a reluctant alleged victim to give evidence.
