Salmond risks drawing attention back to his “no angel” defence

These questions were on the lips of all of Scotland’s political correspondents on ­Friday morning, as news broke that the ­former first minister had finally made good on his threat – first issued more than two-and-a-half years ago – to bring further court ­proceedings against the Scottish ­Government and its officials in connection with how the sexual harassment allegations made against him were handled almost five years ago. 

For a while it looked like this legal action – like his promised “tell all” book about the saga – had been shelved and that the Alba leader had decided to move on with this life. Not a bit of it. 

This time, he’s looking for £3 million ­damages for alleged loss of earnings in the Court of Session, alleging the way he was ­investigated for sexual harassment ­constitutes “misfeasance in public office” by those responsible. 

But as his ­accompanying press statement made clear, he wants this new court case to be a “day of ­reckoning” for those he continues to claim were part of a “deliberate, prolonged, malicious and concerted effort among a range of individuals within the Scottish Government and the SNP to damage my reputation, even to the extent of having me imprisoned”. 

Untangling and understanding the ­various legal strands to this apparently ­neverending story can be tricky. First, there was the judicial review of the ­Scottish Government’s sexual ­harassment inquiry in 2019. 

Then there was the criminal ­prosecution, covering a wider range of ­allegations. 

Confusion
After Salmond’s High Court ­acquittal in 2020, the ­parliamentary ­inquiry into the handling of the two ­initial complaints rumbled on over months – with showdown Holyrood ­committee ­appearances by the main ­players, cross-examinations by MSPs, and various legal interventions first by the Crown Office and then The Spectator magazine concerning what Parliament and witnesses had to do to stay on the right side of the contempt of court orders in place in the case. 

Confusion about what the courts have and have not decided about this saga ­arguably begins with the judicial ­review in 2019. 

And this is important, as this week many people are already asking ­whether ­Salmond’s success in his first ­judicial ­review means he is guaranteed to win this new case. 

He isn’t – because the two court actions are about different things. Judicial review is basically about due process. 

The first ­judicial review was eventually conceded by the Scottish Government on the basis that the sexual harassment ­investigation into the former first ­minister was ­“unlawful, unfair and tainted by ­apparent bias”. Lord Pentland’s nifty ­formulation is much-quoted – but I’m not sure how well understood it really is. 

He was ­using ­technical legal terminology in this ­summary which has the real potential to mislead when taken out of context. 

‘Apparent bias’
THE key failure identified in the ­judicial review was that the HR official in the Scottish Government ­responsible for ­investigating the sexual harassment ­complaints against the former first ­minister didn’t follow the government’s own rulebook about how harassment ­inquiries should be conducted. 

This fact only fully emerged after the ­judicial review petition had been raised and didn’t feature in Salmond’s initial objections to the investigation into his behaviour. 

The official’s failure to follow the rules was why the investigation was ruled ­unlawful – and why its outcome was ­coloured by “apparent bias”. 

In public law, this is distinct from any finding of “actual bias” where it is proven a decision-maker was actually prejudiced against someone involved. It’s about the look of the thing. It’s about perception.  

On the admitted facts, Salmond was clearly entitled to win the first ­judicial ­review action. Officials had acted ­indefensibly in public law terms. But as failures go, all the case established was that there had been a cock-up. 

With this “misfeasance in public office” action, Salmond is taking the conspiracy theory he outlined in Holyrood in 2021 back into the Court of Session and mounting a much more serious set of claims about the motives and motivations of the Scottish Government and its officials who investigated his behaviour. 

When the hacks were ringing around ­legal Scotland on Friday, ­trying to ­understand what this mysterious concept of “misfeasance in public offence” was, they got a number of cagey and hedged responses. 

Why? Because “misfeasance in public office” is an obscure and seldom-brought civil action which nobody seems to know much about. In England and Wales, the tort of ­misfeasance of public office has roots in the early 18th century but only ­really matured in the 20th century. 

The technical ­requirements for the action were clarified in a 2001 House of Lords case against the Bank of England, brought by three depositors who had lost everything in a failed bank.

They argued that officials in Threadneedle Street should never have given the doomed bank a licence and sought compensation from the Bank of England for their losses. 

Their misfeasance in public office claim failed because they couldn’t prove anyone had acted in “bad faith”. 

It wasn’t until 1984 that Scots courts first recognised that litigants could bring similar cases here – but they are as rare as hen’s teeth and even then seldom successful. 

In a case involving Shetland Islands Council, Lord Ross held that anyone who “suffers loss and damage” as a result of the “deliberate misuse” of ­powers by public bodies could sue. 

But like the law in England, there’s the ­legal kicker which makes these cases very hard to make out. 

Legal basis
TO succeed in a ­misfeasance ­action, the pursuer needs to prove the ­public ­authority was “actuated by actual ­malice”, or ­establish that the ­public ­authority did what it did “in the full knowledge that it did not possess the power which it purported to exercise”. 

This is the legal basis for Salmond’s fresh claim. A few consequences flow from this. Plain incompetence doesn’t give rise to a cause of action for misfeasance. 

Good faith errors can’t be recovered for either. 

Proving that government decisions were “actuated by malice” is a very high legal bar – and one most claimants fail to reach. 

Because these cases turn on proof about key actors’ attitudes and intentions rather than abstract legal arguments, if the case goes the distance, a media circus is inevitable.

People involved are bound to be called to give evidence under oath, and to be subject to cross-examination about their decisions, actions and intentions in open court. 

This may include the officials and politicians named in the initial summons – Leslie Evans and Nicola Sturgeon – but could also include the two women who first complained about feeling harassed by the former first minister. 

This court action seems guaranteed to draw attention back to Salmond’s “no angel” defence and his conduct ­towards officials and subordinates in his private office while he was first minister. 

Why bring the case now? 

The reasons for kicking the Court of Session case off now are almost certainly technical. The simple fact is: Salmond was on the clock. The Scottish Government conceded the judicial review back in January 2019. 

The civil law imposes periods of prescription and limitation on court actions, after which your rights or ability to petition the courts for remedies are extinguished. 

In January 2024, any rights Salmond might have would have disappeared – hence this November surprise. The starter’s gun having fired, it still isn’t clear whether this will be a marathon or sprint. After an initial hearing, the cause was immediately paused for an uncertain period of time. 

One thing at least is clear. If you thought or hoped the book was closed on this controversy in Scottish public life – think again.