The Lord Advocate shows the ‘punishable’ Scottish parliament where power really lies

The Alex Salmond inquiry is about far more than his allegations against Nicola Sturgeon and her government: it offers alarming insights into the extent and scope of political power in Scotland. In particular, the way in which the Crown Office, Scotland’s government prosecutors, pressured the devolved parliament into censoring Salmond’s evidence. It’s all the more worrying because the Lord Advocate, who runs the Crown Office, is a serving member of Sturgeon’s Cabinet. It was his turn to face that committee today.

James Wolffe QC started by reminding them that they were dealing with someone above them. ‘The actions of the Crown are not within the remit of the committee’, he said in his first sentence. They were lucky, it seemed, that he condescended to be there at all. 

He then warned the politicians to watch their step in the questions they were about to ask him. ‘The committee should not entertain any attack on the integrity of the Crown or the hardworking people who work for it,’ he declared. Why not? What if the integrity of the Crown Office was at the heart of all this? What if that integrity has been compromised by the Crown Office’s closeness to Sturgeon’s government (of which the Lord Advocate is a member) resulting in a politicised abuse of its powers to thwart an investigation into the First Minister’s conduct?

It was as if Wolffe thought parliament accountable to his Crown Office, not vice versa. He spoke about the court order that mandates anonymity for Salmond’s accusers, an order now being used to discourage any open discussion about the scandal. Wolffe wanted the committee to remember that even politicians should reason to fear this court order.  ‘Any breach of that order – by this parliament, by its members or anyone else – would be punishable as a contempt of court.’ 

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Quite a word, that: punishable. He was warning Holyrood’s politicians that they are vulnerable, that they don’t have the freedom that MPs in Westminster do. No MP is ‘punishable’ for what they say in a Commons chamber or committee: they are protected by parliamentary privilege, a cornerstone of UK democracy. But this cornerstone was not included in devolution settlement – creating a vulnerability in the system. The question is whether this vulnerability has been exploited by the Crown Office, for political reasons, to make sure the investigation against Sturgeon didn’t get too far.

The Lord Advocate did not even pretend to be impressed by the theory of parliamentary freedom. He seemed to think it a great idea that MSPs can be threatened or sued by his Crown Office colleagues for what they say in parliament. ‘Enforcing the law is a vindication of democracy, not its denial,’ he declared at one point. Democracy: c’est moi.

But here’s the thing. It was not the law that led the Crown Office to censor Salmond’s evidence against Sturgeon and her government. The Spectator has published his evidence on our website: there’s plenty embarrassing to Sturgeon but nothing to identify any complainant. If Salmond’s evidence really does violate the court order, why did the Crown Office say nothing about the censored passages when The Spectator went to the High Court to discuss his evidence? Why censor a parliament, but not a magazine?

A Tory committee member, Margaret Mitchell, put this to the Lord Advocate: why did he ‘impose more stringent restrictions on parliament and its ability to publish than was deemed necessary for The Spectator?’. He replied that the Crown ‘formed the view that certain parts of the submission were liable to be a breach’ of the court order on complainant anonymity. But this makes no sense. If there were any genuine legal problems in Salmond’s evidence, he said, why were they not raised at the High Court when The Spectator sought clarity on the nature of the court order?

This is one of the important points established by The Spectator’s (very expensive) day at the High Court. The Crown Office then had a chance to raise an objection to the Salmond evidence as published on our website – and all he had to say about Nicola Sturgeon. But the Crown was silent. No hint that anything Salmond had said was in contempt of court. Only the day before Salmond was due to give evidence did they write to the committee and ask for evidence to be redacted. We still don’t know what the Crown said, or what grounds they gave for their interference with a parliamentary inquiry.

But let’s go back to what Margaret Mitchell asked: why take action against a parliament and not against a magazine? I’ll give you one explanation. Under the Holyrood system, censoring Salmond’s written evidence limits what he could tell the Committee. It also affects what Nicola Sturgeon can be asked when she gives evidence on Wednesday.

‘I think people will wonder why the Crown sought to intervene in parliament’s publication, but not in The Spectator‘s – when it was aware they were identical,’ said Margaret Mitchell. We at The Spectator are also wondering. Salmond’s evidence is still on our website. If there is a genuine legal reason for any of what we have published to be censored, we would love to hear it. And if the Crown Office cannot name any reason, then how can the Lord Advocate possibly justify interfering with a parliamentary inquiry? Might he understand why people worry that the law has – perhaps not for the first time under Sturgeon’s premiership – been shaped into a political weapon?

This matters. The Scottish parliament was created to hold the Scottish government to account. For any government law officer to threaten any parliament with ‘punishment’ for overstepping an invisible line would be deeply disturbing. That it has happened in Scotland, when parliament was considering a case as incendiary as the integrity of the First Minister, is a disturbing statement of where power now lies.