Why Alex Salmond's court case could be worse for SNP than police investigation

The verdicts were welcomed by those of us with no skin in the game who held deep suspicions about the process which was intended to put Mr Salmond in jail. The fact that the Scottish Government’s investigation into claims of sexual misconduct made against Salmond was branded as “tainted by apparent bias” in the Court of Session did nothing to alleviate concerns that the whole thing stank to high heaven.

Last week in the House of Commons, Sir David Davis, a quixotic Tory MP and friend of Mr Salmond, put it beyond doubt that these matters have not gone away and why, indeed, should they? If even a fraction of what Sir David rehearsed under parliamentary privilege proves to be true, then the ramifications will be immense and justice will demand to be done.

The title of last week’s debate was “Adequacy of the Scotland Act 1998”. One might have expected this to attract the interest of the SNP’s nine survivors at Westminster but none of them turned up; doubtless having a fair idea of the perceived inadequacies which Sir David intended to identify. These, in his view, contributed not only to the prosecution being brought but also to Holyrood’s subsequent failure to access the truth about how crucial decisions were made.

He said: “The Holyrood parliamentary committee [that looked into the Salmond case] suffered because it did not have adequate power to hold the Scottish Government to account, which allowed it to be frustrated by the government and threatened by the Crown Office… There is also concern about how the SNP’s leadership exerted influence over the rule of law in Scotland, in the Scottish Parliament, the Crown Office and Procurator Fiscal Service, the courts, the police and the media.”

£3 million legal action

Quite a charge sheet but is this a case of raking over old history which has nowhere left to go? Well, no, actually. Sir David’s purpose may have been to remind us that none of this sinister story has vanished, much as the SNP might wish it to be otherwise. 

On the contrary, Mr Salmond is suing the Scottish Government for £3 million and this civil action has merely been sisted since last November. Its day will come.

Meanwhile, as Davis said: “This is about more than Alex Salmond. To ensure that it never happens again, we must review the consequences for civil servants found to have acted improperly by parliamentary committees, we must strengthen the investigative powers and legal protections offered to Members of the Scottish Parliament, and we must immediately separate the powers of Scottish law officers from their roles in administering criminal justice and providing advice to the Scottish Government. It is time to invoke a famous phrase, often invoked in England but just as pertinent in Scotland: fiat justitia – let justice be done.”

Supposing there had been no ‘Salmond case’, these wider issues would still be in urgent need of review. The Scotland Act requires re-visiting to take account of how checks and balances envisaged in 1998 have failed lamentably to hold the executive to account. Time and again, the committee system which was supposed to fulfil that function has had rings run round it by ministers and civil servants.

Evasion tactics

In the case of the Salmond inquiry committee, even its SNP chair complained of “delay, prevarication and obfuscation” on the part of ministers. Whatever the inconvenient subject under scrutiny, from ferries to finance, these have become standard tactics of evasion in which current and previous First Ministers have proved themselves particularly adept.

MSPs, even if they wanted it, have no means of redress due to committees which matter being run along whipped party lines. That goes a long way towards explaining not only the failure of accountability but also the passage of incompetent legislation which subsequently has to be undone. 

It may be ironic that it has taken the Tory MP for Goole and Pocklington to raise the need for an updating of the 1998 Scotland Act to take account of how its workings have evolved. As long as Scottish representation at Westminster was dominated by nationalists, Holyrood reform was scarcely going to be on their priority list. The general election changed that, as was signalled in response to last week’s debate.

‘Culture of hate’

One irony, of course, was that the speech Sir David made in Westminster could not have been made in Holyrood because parliamentary privilege does not apply. That is a glaring omission in the 1998 Act, as any legislature should extend to elected members the right to raise matters of public concern without fear of legal retribution. It is then up to them to exercise that right responsibly.

The new Scotland Office minister, Kirsty McNeill, said in reply to Sir David: “We have committed in our manifesto to ensuring that members of devolved legislatures will have the same free speech protections enjoyed by MPs here at Westminster, to better ensure that elected representatives can hold those in power to account.” Excellent, but I wonder how enthusiastic the Nat Nine would have been, if they had been there to hear it?

With Joanna Cherry railing against the “culture of hate” and “no debate mantra” within the SNP, there is plenty for them to sort out. However, old ghosts do not conveniently disappear and it may yet prove that even Operation Branchform is a lesser concern than the prospect of Salmond vs Sturgeon et al as Scotland’s civil trial of the century.