MSPs on Holyrood’s Alex Salmond inquiry have voted against publishing the former First Minister’s dossier alleging Nicola Sturgeon broke the ministerial code.
It’s understood the vote was wafer thin, with just the four SNP MSPs plus Andy Wightman voting against publication. The rest of the committee, Tory MSPs Murdo Fraser and Margaret Mitchell, LibDem Alex Cole-Hamilton, and Labour’s Jackie Baillie voted for the document to be published.
The decision could throw the committee into crisis. Over the weekend, one MSP told the Sunday Post they would quit the parliamentary probe if they felt they were unable to do their job.
This morning's vote means it’s unlikely Salmond will appear in front of the inquiry.
He was supposed to appear at today’s session, but pulled out after the parliament refused to publish the allegations.
READ MORE: Alex Salmond pulls out of committee appearance over prosecution fears
The cross-party committee is investigating the Scottish Government’s flawed probe into allegations of misconduct made against Salmond by two civil servants.
He had the exercise set aside in January 2019, with a judicial review declaring it “unlawful” and “tainted by bias”. The Government’s botched handling ultimately cost the taxpayer half a million pounds.
At a later criminal case the former SNP leader was found not guilty on 12 charges.
Following the Scottish Government’s concession of the judicial review, Sturgeon referred herself to the independent advisers on the Ministerial Code over claims she had broken strict rules by failing to swiftly declare the three meetings and two phone calls with Salmond about the harassment complaints.
Scottish Government guidelines say that when discussing official business “any significant content” should be reported back to private offices.
James Hamilton, a former director of public prosecutions in Ireland, was tasked with investigating the First Minister’s actions.
In his submission to the Hamilton inquiry, Salmond claimed the First Minister had “repeatedly misled” MSPs about meetings between the two at Sturgeon’s home.
Much, if not all of the submission, is already in the public domain.
But the committee decided against publishing the submission as it failed to “comply with relevant court orders”.
READ MORE: SNP staffer disputes colleague's claim of Alex Salmond 'physical aggression'
Following the vote, a Scottish Parliament spokesperson said: “The default position for the Committee has always been that it would publish as much information as possible.
"However, the work of this Committee must respect relevant legal obligations, including court orders made in relation to a judicial review and a criminal trial, which are aimed at protecting the anonymity of complainers.
"Whilst the issue of publication is ultimately a matter for the [Scottish Parliament Corporate Board], the majority of the Committee is in agreement that it cannot publish given the legal constraints on it.
“The Committee’s statement on the handling of information and evidence has been made clear to all witnesses giving evidence to the Committee, and this was highlighted to Mr Salmond when the Committee first wrote asking him to contribute to its inquiry on 7 July 2020 and again in October and November 2020.
“The Committee would have been able to publish Mr Salmond’s submission, in line with the Committee’s statement, as it has his other submissions to the Committee.
"However, publication of the full submission in a manner that is readily accessible has made it impossible for the Committee to make the redactions needed to meet its legal obligations.
"This is clearly regrettable and something outwith the Committee’s control, but the Committee will not breach its data protection obligations or the court orders. This reasoning has been made clear to Mr Salmond on numerous occasions.
“The Committee has corresponded extensively with Mr Salmond and his legal representatives since July, when he was first asked to make this submission by early August. In addition to the issues around Mr Salmond’s submission, there are a number of conditions to his appearance that the Committee simply could never meet, including waiving threat of all legal prosecution. It is simply not within the Committee’s gift to make such a commitment.
“The Committee will use the detailed submissions he had already made to the Committee, all of which have been published by Parliament in line with the Committee’s statement on written evidence, as well as the over 130 pages of documentation from his solicitor, to help complete its vital work. All of this can be used to question the First Minister and can be published in the Committee’s report.”
There were three votes during the session.
Murdo Fraser proposed that the Committee published Salmond’s submission "with appropriate redactions." That was rejected by the four SNPs and Wightman, and supported by the four opposition members.
The SNP's Maureen Watt proposed that the Committee not publish any version of the submission. That too was agreed to by five votes to four.
Tory MSP, Margaret Mitchell, who is the committee's deputy convenor, said that as consensus could not be reached the decision should now go to the SCPB. That too was rejected by five votes to four.
On Monday, Salmond’s team said that the decision not to publish meant the submission couldn’t “even be considered for inclusion in the Committee’s report”.
In a letter to committee convener Linda Fabiani, his lawyer called the decision not to publish the submission “absurd”.
David McKie from Levy & McRae told MSPs his client was still “willing to give evidence to the committee at any point up to the final date for evidence” but needed clarity over restrictions in place.
Without that, the lawyer said, Salmond risked being placed “in legal jeopardy”.
He added: “Asking a witness to accept the constraints of speaking only to evidence selected by you on the undisclosed advice and direction of unidentified others is not acceptable in any forum and is, in our client’s view, particularly offensive when the remit he seeks to address has been set for you by Parliament and addresses the unlawful actions of an elected Government and the needless squandering of hundreds of thousands of pounds of public money.”
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