One of the storm clouds hovering over this morning’s appearance of the First Minister at the Scottish Parliament Committee on the Government Handling of Complaints was her potential breaches of the ministerial code.

The lightning looked ready to strike as the night before the government’s legal advice provided to Sturgeon over the judicial review was released in the face of a potential vote of no confidence. It was claimed that the Government were pursuing a “doomed” case - a Charge of the Light Brigade – in facing down Alex Salmond’s judicial action over the handling of his complaints. If legal advice had shown this, as the Scottish Conservatives pointed out, it would have breached the ministerial code. Further wasting public money in such a way would be a potential abuse of funds.

However, one thing that became clear today was Nicola Sturgeon was very confident in her rebuttal of these allegations. To some extent this is backed up by looking at the papers themselves. In the First Minister’s own words there was a “catastrophic” problem with the way that the government handled the two complaints against Alex Salmond. That was essentially the involvement of the civil servant appointed to investigate the complaint. They had been involved in the process at an earlier stage which fatally tainted the way the policy had been applied.


Through the months of legal advice received through 2018 the gradual realisation of this situation as more documents were discovered led the advocates drawing up the opinions to conclude the case could not be won and in December– weeks before the hearing - this was agreed. On the broader issues of the harassment policy itself which was the main focus of Salmond’s case the Scottish Government were on stronger grounds. In Nicola Sturgeon’s own view the advice “was on the more positive side” of other such documents she had seen in other contexts.

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In particular, she made the significant point that the controversial policy of alcohol minimum pricing faced a well funded legal challenge from the Scotch Whisky Association and the legal advice received by the Scottish Government then was pretty negative. However, the government had believed it was in the public interest to pursue.

Defending the government policy on harassment and complaints was seen as linked to the public interest in having a robust system in place in dealing with staff complaints including sexual harassment. This remained the case up until the evidence of the handling of the specific investigations became clear.

Alongside the more balanced reading of the legal advice, it would suggest that it is difficult to say that the government blundered recklessly into the defeat of court action in January 2019. So the charges under the ministerial code would be difficult to stick and explains the confident rebuttal.

HeraldScotland: Dr Nick McKerrellDr Nick McKerrell

Another serious charge under the same code is “severely misleading Parliament” which has also been levelled at the First Minister. Ostensibly this focuses on dates that Nicola Sturgeon gave on discovering the allegations against Alex Salmond. She told parliament this was on April 2 – there is evidence she met with associates of the former first minister several days before this.

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Although the detail of this is subject to a specific ministerial code investigation undertaken by a leading Irish lawyer – James Hamilton QC – the First Minister defended herself on these points. She claimed although she met with Salmond’s chief of staff Geoff Aberdein several days before, none of the details of the allegations were shared – it was a general discussion on Salmond’s attitude and to try and organise the meeting. Thus it did not “stick in her memory”. The issues around these dates and what was discussed is more difficult to pin down at a parliamentary committee as there is no relevant documentation.

Ultimately throughout the day, Nicola Sturgeon argued that her actions were driven by a desire not to abuse her powers to cover up the alleged actions of a former friend and once the most powerful politician in Scotland.

If in doing so she breached the ministerial code it seems unlikely it will be on the basis of the legal advice released this week.

Dr Nick McKerrell, Senior Lecturer in Law, Glasgow Caledonian University