Thread by @GeorgePeretzQC

A few, tentative, thoughts on the legal advice disclosed by the Scottish Government on the Salmond case. gov.scot/publications/l…

NB I am not a Scots lawyer, and some of the procedural language is strange to me (though I can get the gist). But the issues of fairness, procedural error, apparent bias and duty of candour are all pretty familiar and as far as I can see much the same in Edinburgh as London.

This is the key chronology - which looks fair enough, having looked at the documents behind it. (It’s from the 29.12.18 document.)

These are the issues. Essentially, (1) is whether the investigating officer should have been appointed given prior involvement and (2) is whether the procedure was vitiated by apparent bias.

As you can see from the chronology, SG Counsel get more and more pessimistic over time. Largely because documents turn up that (a) make it clearer that the IO was in fact involved prior to appointment and (b) contradict what the SG had previously claimed.

Note: (a) left it open in principle to argue that her involvement didn’t matter (a legal argument) and (b) is horribly embarrassing but doesn’t necessarily mean you lose (though, forensically, you are usually reeling).

The picture of a case deteriorating from reasonable to merely arguable (or as Scots put it, stateable) to unarguable/unstateable, as documents that should have been found earlier turn up, is one that most experienced advocates will recognise with a shudder.

Did the SG go wrong in fighting the case? Well, any government is and should be politically accountable for deciding to contest any case. I have no comment on the intricate politics.

Does it make a difference that lawyers advise that you are likely to lose? Well, it is sometimes quite right for any government to fight a case even if lawyers are gloomy about it.

Eg: there is a huge amount of money at stake dwarfing any costs; the policy is in the public interest and worth taking the risk for; that a court should be given the chance to clarify the law or give guidance.

So the mere fact that lawyers are saying that failure is more likely than not doesn’t *itself* mean that it was wrong to fight on. That seems to have been true to ~19 Dec (just before Christmas).

Once a case becomes “unstateable”, though, then government should certainly concede. Indeed, Counsel are under a duty not to run unarguable points. But NB that any government will - properly - interrogate that advice, which will take a bit of time.

As I said, any government ought to be politically accountable for deciding to contest particular cases. But I’m not sure that it adds much to the criticism to say that lawyers thought the government was more likely than not to lose. (“Unstateable is another matter.)

So keep an eye on the chronology, here.

One thing that does seems to have gone very badly wrong is late disclosure and breach of the duty of candour. It isn’t at all clear how that happened: but it’s serious. As Counsel make pretty clear. I’m not sure that that’s the focus of the criticism here, though.