Scotland’s highest civil court cannot provide all evidence sought by MSPs investigating the Scottish Government’s botched handling of sexual harassment allegations against Alex Salmond without a court order.
Pam McFarlane, the director and principal clerk of the Court of Session, confirmed the position in a letter to the convener of the Committee on the Scottish Government Handling of Harassment Complaints.
The Holyrood committee was set up after the former first minister was awarded more than £500,000 when the court ruled the Scottish Government’s investigation into the allegations against him was unlawful.
I am unable to provide the committee with the remaining documents you seek without an order of the court directing me to do soPam McFarlane, Court of Session director
Committee convener Linda Fabiani wrote to the court to request the release of all evidence relating to the case in an attempt to bypass legal wrangling and disagreements between Mr Salmond’s lawyers and the Scottish Government.
In her letter to the court, the SNP MSP said the Scottish Government’s “previous refusal to provide documentation” has delayed the committee’s inquiry.
Pledging to comply with all relevant legal restrictions, she added: “We consider that having sight of some of the court documents is essential to enable the committee to meet the terms of its remit.”
In her reply, Ms McFarlane said the court could provide copies of court orders and Judge Lord Pentland’s notes of October 4 and December 14, 2018, but believes the committee may already have been provided with these documents.
She added: “I am unable to provide the committee with the remaining documents you seek without an order of the court directing me to do so.”
Ms McFarlane said alternative options for the committee being able to see some of the evidence lodged in the case include for the court to request those involved remove them from the court and make them available to the committee.
She added: “As an alternative to parties borrowing their productions and making them available to you, the committee, represented by the Scottish Parliament Corporate Body, may wish to consider making an application to the court for an order authorising access to the documents that the committee wishes to consider in the context of fulfilling its remit.
“I can make no comment on whether such an application would be granted.”
A Scottish Government spokesman said: “We have previously set out to the committee that, whilst there are documents that it is not possible to provide, there are a range of documents that can be provided, and also documents that could only be provided if the court agrees.
“This letter confirms that legal position. The Scottish Government has made a substantial body of documentation available to the Committee and is working to provide further documentation to it.
“So far as it needs to do so, the Scottish Government will seek a court order to allow the release of further documents.”