1. Last week, we asked about legal advice in the Alex Salmond case and the First Minister refused to answer any questions. We were told that every issue had been covered. The next day, after First Minister’s Question Time and two days after her evidence session, John Swinney released another tranche of legal advice that was even more damning than the last. I will ask the questions that the committee could not ask about the evidence that the Government was so reluctant to release.

The new evidence shows that the Government’s senior lawyer, Roddy Dunlop QC, warned the First Minister personally not to “plough on regardless” because of

“the large expenses bill that would inevitably arise”.

I ask the First Minister how much taxpayers’ money the case cost from that moment on.

We set out the costs of the judicial review. I do not have that breakdown to hand, but I can look into whether we can provide that breakdown to Parliament. Ruth Davidson, in some respects, makes my point for me. Let me say first that, whether the Opposition wants to believe this or not, I take the matter extremely seriously and I take very seriously the obligation on me and my Government to learn lessons from it.

The point that I think Ruth Davidson is making for me is that she is quoting from the legal advice that has been published. We have published all the substantive legal advice, which sets out very clearly—[

Interruption

.] I can take Parliament through exactly what we have published in response to the request for that advice. We have set out the substantive legal advice and, although I suspect that most people who are watching right now probably want to hear about vaccination, Covid and when we might come out of lockdown, anybody who wants to read the legal advice can go on to the Scottish Government website and do that.

What that legal advice sets out very clearly, warts and all, is an unvarnished account of what went wrong and the opinions of senior counsel at different stages of the judicial review. It sets out very clearly the error that was made by the Scottish Government and the way in which that error came to be fully realised and understood. It also sets out the view of the law officers—under the ministerial code, that is what matters to ministers—that, well into December and notwithstanding all of that, the Government should continue to defend the case for the wider reasons that have been set out, and then, later in December, the reasons why that was no longer possible.

The impression that I think the Opposition is trying to give is that what we have published is somehow a rosy picture and that there are horrors lurking underneath that are being concealed. Anybody who reads the advice can see very clearly that that is not the case. A serious error was made by the Government in that investigation, and, as the judicial review proceeded, that error became very apparent. That is why, ultimately, the judicial review had to be conceded. Perhaps, instead of chasing phantoms, the Opposition should focus on what is there, because it sets out very clearly the mistake that the Government made, the lessons that it needs to learn from that and the lessons that I am determined that the Government will learn from it.

I asked the First Minister a very specific question. Whatever that was, it was not an answer. We have since learned that, from the moment that Roddy Dunlop wrote that note, on 17 December, to the time when the Government finally conceded, the bill exceeded £100,000—perhaps even £200,000—but we do not know for sure, because the Government will not tell us its side of the bill.

Before the First Minister’s committee session, we knew that Queen’s counsel had stated that

“the ‘least worst’ option would be to concede the case”.

That was on 6 December 2018, a month before the case was finally collapsed. What we did not know last week and found out only on Friday is that the First Minister personally disputed that advice. We know that because Leslie Evans sent a note that said that she and the First Minister were unclear about what had changed since the previous notes and the first ministerial meeting. Again, I put it to the First Minister that, if she had conceded then, hundreds of thousands of pounds would have been saved. Why did the First Minister think that she was a better lawyer than Roddy Dunlop QC and the advocate Christine O’Neill?

The First Minister:

I did not and I most definitely do not. What I do know is that it is my job as First Minister to ask questions, to query things when I do not fully understand what has been put before me and to make sure that I have as full an understanding of the decisions that lie before me as possible. I actually think that it would be more remarkable and more deserving of criticism if I did not ask questions such as the one that Ruth Davidson has just suggested that I asked.

Ruth Davidson talks about advice in the early part of December. One of the things that I was questioned about and talked about extensively before the committee last week was the summary from the law officers on 11 December. That sets out very clearly—people can read it—that the view of the law officers then was that, taking account of everything, they believed that we should continue to defend the case and that there were “credible arguments”—I think that is a quote from the summary note on 11 December—across all of the points of the petition, including the appointment of the investigating officer, which was the key area of difficulty for us. It sets out that that was because, as long as the case was statable, there was a wider interest in getting a judicial determination on the array of challenges that had been made both to the fundamentals of the procedure and the application of the procedure.

Therefore, it is not that those issues were not properly considered. Judgments were made, but everyone can see the views of counsel, the conclusions of the law officers, on which ministers are duty bound to base our decisions, and what happened later in December that led to the decision to concede the judicial review. Of course, we also see a note from counsel—I think that it is dated as late as 17 December—in which they say that they believe that the case is still statable, albeit that they have significant concerns about it.

There are always judgments for ministers to make, taking account of a range of things. The Government made a mistake in the application of the procedure. As that became fully understood during the progress of the judicial review, that ultimately meant that we could not defend the judicial review, but there were wider interests that we were right to take into account and carefully consider at every stage of the process. The point is that people do not have to take my word for it: they can go and look at all the material that has now been published in an unprecedented fashion and draw their own conclusions—as, indeed, can the committee, and I am sure that it will in due course.

The new evidence that was withheld from the committee until after Nicola Sturgeon appeared shows that Roddy Dunlop QC wrote back when the First Minister challenged his advice, and we now know what he told her in response. He wrote that there were two options and said:

“I doubt either will work.”

Then, a week later, both senior lawyers said that their advice had been “discounted”. Roddy Dunlop is the current dean of the Faculty of Advocates. He is the most senior lawyer in Scotland. As he had previously explained to the First Minister, conceding the case early would “reset” the procedure and allow for a “renewed investigation” that was less open to challenge. In effect, the women’s claims could be looked at again but with the Scottish Government doing it the right way rather than spending all that time and money defending the indefensible in court and letting those women down all over again. Why did the First Minister not listen to that?

The First Minister:

We did listen to counsel. Lots has rightly been said about the ministerial code. I will not get into that, because another person is looking at it right now, but anybody who reads the ministerial code will know that, in terms of the obligations on ministers, we are duty bound to ensure that we take into account the views of the law officers. I have just narrated the views of the law officers. Of course, the law officers, in coming to their opinions and judgments, take account of the advice and views of the counsel that Government instructs, but they also take account of the Government’s wider interests and the wider public interest as well. We take account of all of that.

Ruth Davidson is just not correct in saying that, until a very late stage, we were “defending the indefensible”. Yes, counsel had mounting concerns, but the case was considered to be statable even by counsel up until, I think, 17 December, and there were wider interests that the law officers thought it was important to take into account.

A different First Minister might have reached different judgments—that is absolutely undeniable—but any First Minister in the job has to take decisions on the basis of the array of advice that we have and weighing up the right things. It is undeniably the case that the Government made mistakes, which I and we are determined to learn from. Part of that involves looking at why we got into a position in a judicial review whereby it became indefensible and we therefore ceased to defend it. The advice that Ruth Davidson is quoting from, which is from the latter part of December, is the start of that process of the Government realising that it could no longer defend the judicial review and taking the appropriate steps to concede the judicial review at that point.

There is lots and lots that I and the Government have to reflect on, and I am absolutely determined to do that. However, the public have, if they choose, the ability to read all of it for themselves. They will, I hope, shortly have reports from the committee and from James Hamilton on the issues with the ministerial code, as well as the report that the Government instructed from Laura Dunlop QC into some of the internal issues that we have to reflect on. We are taking the issues really seriously, and in unprecedented fashion—not just for this Government but in the lifetime of the Parliament—we have put into the public domain information that allows the public to draw their own conclusions.

At her committee appearance, the First Minister became very forgetful, and she seems determined to forget that it was her Government that failed the women so badly. According to five people now, including a QC and a civil servant, her Government is responsible for leaking a complainant’s name to Salmond’s team, yet nobody has been sacked or even reprimanded.

Despite all the First Minister’s protests, the flawed procedure that let the women down has never been changed. The First Minister just mentioned, a second ago, that, six months ago, another QC, Laura Dunlop, started a review of the procedure. Our clear understanding is that Ms Dunlop has reported back to the Scottish Government in writing on her work. For the sake of confidence in the procedures, will the First Minister publish that report now? This week has shown again—and I do not say this lightly—that sexual harassment complainants cannot trust the ruling party to deal with a complaint properly.

The First Minister:

The first allegation that Ruth Davidson has made is disputed. I disputed it at committee last week. I was not party to the conversation that it is based on, and I am limited in what I can say, for legal reasons. Let us be clear, however, that it is disputed.

On the procedure, what was found to be flawed was the application of the procedure. The procedure itself may well have been found to be flawed had the judicial review proceeded, but it was not. Obviously, we will await the outcomes of the various inquiries before reflecting on changes that we need to make. I have not seen Laura Dunlop’s review, but it will be published in early course, once we have seen it.

I want everything about this to be open and transparent, because I want to learn lessons. In recent days, perhaps belatedly, Ruth Davidson has started to talk about the women, and I welcome that, as that is the issue at the heart of this. I will be haunted, probably for the rest of my life, by the way in which the Government, through an error—one that was made in good faith, but an error nonetheless—let those women down. I have apologised for that. I was not involved in the investigation, so I was not aware of the error at the time, but, as the head of the Scottish Government, I take and feel responsibility for that, which is why I think it is important to cast aside the politics in this and focus on the substance. That is what I am determined to do, and that includes a determination to learn any and every lesson that any one of the inquiries tells us that the Scottish Government needs to learn.