The Scottish government was warned by its senior lawyers it faced defeat in an ultimately successful legal action by Alex Salmond after a significant potential conflict of interest came to light, previously secret legal advice reveals.
The guidance, released by Scottish ministers on Tuesday, confirms that their two counsel told them the revelation that a senior official had previously met and briefed two complainers against Salmond had devastating consequences for their case.
Roddy Dunlop QC, now the dean of the faculty of advocates, and his junior, Christine O’Neill, warned Scotland’s most senior civil servant, Leslie Evans, on 6 December that this disclosure meant Salmond’s legal challenge would “more likely than not succeed”.
They stated: “This is, we regret to advise, a substantial problem.” They warned the investigating officer’s appointment was likely to be unlawful.
The Scottish government’s harassment policy had stated that any investigating officer “will have had no prior involvement with any aspect of the matter being raised”.
The documents also reveal that on 31 October 2018, two months before the Scottish government’s chief civil servant decided to concede on 31 December, Dunlop warned that the disclosure the investigating officer had previously spoken to the complainers presented “a very real problem indeed”.
He added: “It would be wrong for me to suggest that this revelation is anything other than an extremely concerning one.”
Evans disputes whether there was a conflict of interest between her contact with the two women before they became complainers and her subsequent role as investigating officer.
More details soon …