THE Holyrood inquiry into the Alex Salmond affair has confirmed its decision not to publish evidence from the former First Minister, meaning he is almost certain never to testify before it.

MSPs voted 5-4 on constitutional lines against publishing a 21-page submission in which Mr Salmond accused Nicola Sturgeon of misleading parliament and breaking the ministerial code.

The four Tory, Labour and Liberal Democrat MSPs voted for publication, while the four SNP and former Green Andy Wightman voted against.

It is understood the inquiry voted the same way against a fresh use of compulsion powers to extract more evidence from the Crown Office.

Labour said the decision meant the inquiry had lost the chance to quiz Mr Salmond, dealing a blow to the parliament's credibility.

The Tories said it would raise suspicions the SNP never wanted transparencey from the process.

After the inquiry initially refused to publish the material last week, Mr Salmond pulled out of his scheduled appearance today and warned MSPs  that unless they published the material, he would find it impossible to appear.

Opposition MSPs had hoped to reach a compromise today on the basis of light redactions, but pro-independence MSPs vote that option down. 

Inquiry sources said they expected Mr Salmond would not now give evidence under oath.

There are suspicions at Holyrood that the SNP members on the inquiry did not want Mr Salmond to testify because of the potential damage he might inflict on Ms Sturgeon.

Mr Salmond is expected to call a press conference to air his complaints instead.

The parliament said the inquiry intended to carry on and take oral evidence from Ms Sturgeon, who is due to be the final witness. 

It said Mr Salmond has demanded a host of conditions on appearing which the inquiry "could never meet, including waiving threat of all legal prosecution".

In a letter to Mr Salmond, convener Linda Fabiani said: "As well as not publishing your full submission as you requested, the Committee is also not in a position to meet your request for immunity from prosecution to enable you to refer to certain evidence under oath.

"On that basis, the Committee is not in a position to meet the conditions that you have set for giving evidence to this Committee."

READ MORE: Alex Salmond threatens to snub Holyrood inquiry over censored evidence

The development follows Mr Salmond lambasting the inquiry over its decision not to publish his latest submission in case it breached court orders, data or privacy rules.

He said the “extraordinary” and “farcical” decision meant the material could not be included in the inquiry’s final report, and made a “mockery” of Holyrood’s commitment to openness.

Liberal Democrat MSP Alex Cole-Hamilton, who sits on the inquiry, last week warned the cross-party committee was “in crisis” over the evidence issue.

He called in vain on Friday for an emergency online meeting to discuss it, but SNP convener Linda Fabiani refused on the grounds it was “impractical”.

Mr Salmond's lawyer, David McKie of Glasgow-based Levy & McRae, then wrote to the inquiry on Sunday saying his client remained willing to appear before February 16, when Ms Sturgeon is due to testify, but on the strict condition that the submission was published.

He said: “It must be clear to you that our client cannot accept a position where his evidence submitted in good faith to your committee (and in greater part still publicly available) is not to be published and there form part of the evidence leading to conclusions in your report.”

Mr McKie further accused the inquiry of putting Mr Salmond "in legal jeopardy" by asking him to give evidence without clear directions, given the Crown Office has threatened him with prosecution if he shares material obtained for his trial defence.

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 Parliamentary Coporate Body, 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.” 

HeraldScotland:

When the inquiry met in private session today, Tory MSP Murdo Fraser proposed publishing Mr Salmond's submission with redactions, but this was rejected 5-4 on constitutional lines.

SNP MSP Maureen Watt then proposed not publishing the submission, given the legal restraints on the inquiry, and this was agreed 5-4 on the same lines.

Tory MSP Margaret Mitchell proposed the SPCB, parliament's ruling body, should make the call instead, given the lack of unanimity on the inquiry, but this was defeated 5-4 on the same lines, with Mr Wightman declaring he was an SPCB member.  

Mr Fraser said: “It is hugely disappointing that some of my fellow committee members have failed to back my call for this vital evidence to be published - with appropriate redactions- despite much of it already being in the public domain.

“This again sums up the lack of scrutiny the SNP Government will be subjected to in relation to this inquiry. It will constrain what we can say and what we can ask of witnesses which is completely unacceptable.

“Today’s vote will only raise suspicions among the wider public that the SNP Government have had no intention of being fully transparent with this inquiry despite what the First Minister has said previously.”

Mr Cole-Hamilton said: "If we are to get to the bottom of how the Scottish Government failed the women at the heart of these complaints so terribly, then we must hear from the subject of its investigation.

"Without a complete version of events from the former First Minister then we will not be able to offer Nicola Sturgeon the opportunity to answer those claims. Something she has repeatedly expressed determination to do.

“The future of this whole inquiry is in jeopardy but we owe it to the complainers, who must have hated every second of this process, to at least try to reach a conclusion.”

Labour MSP Jackie Baillie, who also sits on the inquiry, said: "The decision not to publish this vital evidence is, in my view, a blow to the credibility of the Committee, and, by extension, to the Parliament itself.

“The evidence in question is already largely in the public domain and by refusing to publish it, even with appropriate redactions, the Committee has denied itself the chance to question the former First Minister.

“I do not believe that the public interest has been well served by this decision and the ability of the Parliament to hold the Scottish Government to account is called into question.”

The inquiry is looking at how the Scottish Government botched its probe into sexual misconduct claims made against Mr Salmond by civil servants in 2018.

The former FM had the exercise overturned in a judicial review, showing it has been “tainted by apparent bias”, a Government flaw that left taxpayers with a £512,000 for his costs.

READ MORE: Alex Salmond inquiry: Nicola Sturgeon's husband Peter Murrell 'refutes' perjury claim but ducks key question

He was later charged with sexual assault but cleared on all counts at a High Court trial last March.

After the Government’s defence of the civil case collapsed in January 2019, Ms Sturgeon admitted meeting Mr Salmond three times while he was under investigation by her officials.

She told MSPs the first she learned of the probe was when Mr Salmond told her at her Glasgow home on April 2, 2018. She then met him again in June and July. 

Each time he argued the complaints would be better resolved by mediation.

Ms Sturgeon told Holyrood that she had taken the meetings in her capacity as SNP leader, and so there were no government officials present and the meetings were not minuted.

After referring herself to the independent adviser on the ministerial code, James Hamilton, she is now being investigated over a possible breach of the code, a resignation offence.

The opposition parties say she failed in her duty to report the meetings fully and timeously to her officials. She denies wrongdoing.

Mr Salmond recently made a detailed submission to Mr Hamilton asking him to broaden the Government-set scope of his investigation to look at whether Ms Sturgeon misled MSPs.

Mr Salmond later shared the submission with the inquiry - it was this it refused to publish.

In it, Mr Salmond said some of Ms Sturgeon’s claims about their 2018 meetings were “simply untrue” and “untenable”.

He said Holyrood had been "repeatedly misled" about the nature of the April 2, 2018 meeting, and that Ms Sturgeon had helped arrange it four days earlier on the express understanding that it was to discuss the Government probe rather than SNP business.

He said the earlier meeting, on 29 March 2018, took place in Ms Sturgeon’s Holyrood office, where Mr Salmond’s former chief of staff, Geoff Aberdein, explained the background to her.

Mr Sturgeon later told the inquiry and parliament that she had “forgotten” about this earlier meeting, despite its dramatic content, as it had been a busy day at Holyrood.

READ MORE: SNP urged to suspend Nicola Sturgeon's husband Peter Murrell for bringing party 'into disrepute'

Mr Salmond said in his submission: “The First Minister’s claim that it was ever thought to be about anything other than the complaints made against me is wholly false.

"The repeated representation to the Parliament of the meeting on the 2nd April 2018 as being a ‘party’ meeting because it proceeded in ignorance of the complaints is false and manifestly untrue." 

After Mr Salmond’s submission was made public, Ms Sturgeon’s spokesman accused him of 

try to divert focus away from his own behaviour “by seeking to malign the reputation of the First Minister and by spinning false conspiracy theories”. 

Ms Sturgeon said yesterday that she planned to tackle some of the “ridiculous suggestions” around the Alex Salmond affair when she gives evidence.

The First Minister, who has accused her predecessor of peddling conspiracy theories about her involvements, said she would confront allegations “head on”.

She said: "“Let me be very clear, I’m willing to answer all and any questions put to me by that committee.

“In addition to answering all and any questions I perhaps will also get the opportunity to take head-on some of the ridiculous suggestions that have been made about this whole situation, suggestions that I know have caused many people a great deal of distress."

Mr Salmond's supporters claim he was the victim of a high-level SNP and Government plot to stop him making a comeback and rivalling his sucessor.

Ms Sturgeon has described that as a "heap of nonsense", while her husband, SNP chief executive Peter Murrell, yesterday told the inquiry: "There was no conspiracy."

An SNP spokesperson said: “It is deeply troubling that opposition committee members voted in favour of publishing Mr Salmond’s submission contrary to legal advice that to do so – even in redacted form  –  would be in breach of court orders regarding identification of women complainers.

“The decision to support publication against legal advice is made all the more incomprehensible in light of the views expressed by Rape Crisis Scotland and others over the past days and weeks.

“The Committee must now get on with its important task with the precious little time it has left. Only by doing so can its work be an asset in ensuring that future complainers are not let down.”