An Innocent Man

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Alex Salmond, former MP and MSP, and protector of Scotland’s rights

This is the submission of Alex Salmond to the Holyrood Inquiry. He lays out the process that led to an innocent man facing the rest of his days in jail, a heinous charge made by people intent on a constructive campaign to erase his reputation from the public record. It failed.

The pursuit of the former first minister was conducted ruthlessly by key aides to the current First Minister, Nicola Sturgeon. This is why I retitle the Inquiry the ‘Civil Service Scandal’ and not as the press prefer to call it, ‘The Salmond Affair’ – a sly way of keeping the public’s mind on charges that were false.

It is reproduced here in full, refreshingly written in non-legal language. To follow his argument, now endorsed by judge and jury, is to understand the entire process that let to his appearance in court, that was unlawful and improper. Procedure, contacts between the Investigating Officer and the complainers, an attempt to pass the Decision Report to the police via the Crown Agent, all were unlawful.

A key passage is highlighted in bold, Paragraph 20, an incident in which the Permanent Secretary Leslie Evans altered the record to cover her tracks, the most telling moment in this shameful episode in Scotland’s history, and one that illuminates the character and intentions of his tormentors.

If readers find the submission too long to digest at one sitting, they can read the sections highlighted in blue at the beginning and at the end.

  1. The Permanent Secretary wrote to me on 7th March 2018 saying that the Scottish
    Government was implementing a complaints process against me. I instructed Levy
    and McRae as my solicitors and Ronnie Clancy QC and Duncan Hamilton, Advocate,
    as my Counsel. At an early stage it was clear to me and to my legal advisers that the
    process was defective in a number of ways and that its application was suspect. In
    particular, I had never even heard of such a procedure applying to former Ministers and there was no parliamentary or public record of it ever being implemented.
  2. One striking and immediately identified feature of this policy was that there was no
    provision for mediation in the case of former Ministers, in contrast to the policy on
    serving Ministers (see para 4 procedure) I put this to the First Minister at the meeting
    at her home on 2nd April 2018 which has now been referred to on many occasions.
    Such a provision would be a normal feature of complaints policies and was
    specifically part of the Scottish Government policies with which I was familiar
  3. In the meeting of April 2nd the First Minister had suggested that she would intervene
    in favour of a mediation process at an appropriate stage. She subsequently decided
    against such an intervention. In the event, our proposals of 4th April 2018 seeking
    mediation were rejected by the Permanent Secretary without them even being placed
    before the complainers as an option.
  4. My legal team crystallised our objections to the procedure in a letter to the Permanent
    Secretary of 5th June 2018. This letter which has been provided to the Committee
    gives Senior Counsel’s opinion that on grounds of retrospectivity, absence of
    jurisdiction and multiple examples of lack of procedural fairness the procedure was
    inherently flawed and unlawful. A summary of the legal arguments is also provided in
    the open record which we have provided to assist the Committee. . However, to this
    and to other representations on procedural unfairness there was no substantive
    response.
  5. My legal team advised strongly against rebutting specific allegations because in their
    view the Government had pursued an unfair and unlawful process. Their advice was
    that in those circumstances, full engagement and detailed rebuttal (as ultimately was provided in the High Court) would risk being presented as having acquiesced in that unlawful procedure.
  6. I have produced for the committee the full correspondence from 7th March 2018 up to
    the date of raising proceedings, which should be read in conjunction with this
    submission.
  7. No substantive reply being received to our legal arguments, my lawyers advised that I
    should move to judicially review the government and that the prospects of success
    were excellent. I had asked them to draw up a draft petition for Judicial Review but I
    was extremely reluctant to sue the government I had previously led. I was also deeply
    concerned about such an action given what it might mean for both the First Minister
    and the SNP. I therefore asked to meet the First Minister to show her the draft Judicial
    Review petition. This meeting took place on 7th June. In contrast to our first meeting,
    the First Minister was now against making any intervention although I had previously
    spelt out in a WhatsApp message to her of June 3rd what I considered to be her duty
    to do so under the Ministerial Code. That too has been provided to the Committee.
  8. On 26th June 2018, still seeking to avoid damaging court proceedings, we (my legal
    team and I) put forward a new proposal for arbitration drawing on Scottish ]
    legislation passed in 2010. The offer was that I would abide by the decision of the
    arbiter if it went against me. We were confident that many of our criticisms would be
    accepted in any arbitration and agreed to submit to the full Scottish Government
    process if my legal advice was wrong. Arbitration had multiple advantages. First, it
    was confidential and thus protected those who had made complaints. Secondly, it
    would provide legal clarity and resolve whether the clear advice on the unlawfulness
    of the procedure was correct. Thirdly, it would have resolved these matters in a forum
    which maximised the potential for avoiding expense to the public purse, to me and
    minimised the damaging fallout for the complainers, Scottish Government and the
    SNP in the event I was successful. I explained the benefits of arbitration to the First
    Minister in a WhatsApp message of 5 July. At the First Minister’s invitation
    (delivered via a senior official on 13 July) I met her for a third time at her home in
    Glasgow the following day to ask her to make it clear that she was not personally
    against such arbitration. That request arose in case any such perception was the basis
    for the otherwise inexplicable decision on the part of the Permanent Secretary to
    refuse any form of alternative dispute resolution and instead force this matter into an expensive judicial review in the Court of Session. I updated my lawyers about this meeting.
  9. On 18th July I was written to by the Permanent Secretary and phoned by the FirstMinister at 13.05 urging me to submit evidence on the specific complaints. This I did after a formal consultation with my legal team to whom I divulged the First Minister’s phone call and advice. I refer to my submission made to Mr James Hamilton, the independent adviser to the Ministerial Code, which covers this passage of my evidence.
  10. I now know that the submission was given only the most cursory examination by the Investigating Officer whose report had already been drafted and submitted to the Permanent Secretary. The rebuttal was submitted on Friday July 20th. The Investigating Officer finalised her report after submitting my comments to both complainers on Monday July 23rd.
  11. On August 22nd the Permanent Secretary sent me her Decision Report having already instructed that it be sent to the Crown Agent, Mr David Harvie – not bringing matters “directly to the attention of the police” as provided for in the policy. On August 21st. The Chief Constable and the lead officer correctly refused to accept the Decision Report when the Crown Agent tried to hand it to them, and asked that there be no publicity, lest their investigation be contaminated.
  12. Despite this, on Thursday 23rd August my legal team was informed that the Scottish Government intended to release a public statement on the fact of the investigation at 5pm that day. That, despite the firm assurances of confidentiality which had been made throughout. We replied that such a decision to publicise left no option but to seek an interim interdict against the government that evening preventing publication. That action became the petition for Judicial Review. The Scottish Government agreed to withdraw their proposed public statement pending resolution of the interim interdict application by the Court of Session.
  13. By late afternoon the Government claimed that they had been contacted by the press but had confirmed nothing. At 6.34pm we informed the Government that an interim interdict would not be heard that evening. We had by that stage had no contact from any news outlet. Shortly after 8pm I was phoned by David Clegg, political editor of the Daily Record who then emailed me at 20.16 informing me that they now had been given confirmation that a police complaint had been made against me and were publishing their story at 10pm. We were unable by that time to secure a judge to hear

STATEMENT FROM ALEX SALMOND EMBARGO 10pm THURSDAY 23rd AUGUST
FORMER FIRST MINISTER TAKES

LEGAL ACTION AGAINST SCOTTISH GOVERNMENT IN COURT OF
SESSION


“For many months now, and on the advice of Senior Counsel, I have attempted to persuade the Permanent Secretary to the Scottish Government that she is behaving unlawfully in the application of a complaints procedure, introduced by her more than three years after I left office. This is a procedure so unjust that even now I have not been allowed to see and therefore to properly challenge the case against me. I have not been allowed to see the evidence. I have tried everything, including offers of conciliation, mediation and legal arbitration to resolve these matters both properly and amicably. This would have been in everybody’s interests, particularly those of the two complainants. All of these efforts have been rejected.

The Permanent Secretary chose to deny me contact with any current civil servant, many of whom wished to give evidence on my behalf and access to documentation to allow me to properly challenge the complaints, all of which I refute and some of which were patently ridiculous. The procedure as put into operation by the Permanent Secretary is grossly unfair and therefore inevitably will lead to prejudicial outcomes. It is therefore with great reluctance that I have today (Thursday 23rd August) launched a Judicial Review in the Court of Session which will decide the issue of the lawfulness of the procedure which has been used against me.

If I lose then I will have to answer to the complaints both comprehensively and publicly. Until then I am bound to say nothing which would impinge on the Court proceedings. In our submissions on Judicial Review we have asked that the complainants’ identity be protected.

If the Court of Session finds in my favour then the administration at the senior levels of the Scottish Government will have the most serious questions to answer. In my opinion and for whatever reason the Permanent Secretary has decided to mount a process against me using an unlawful procedure which she herself introduced. I will let a real court decide whether it was lawful for her to do so.”

STATEMENT FROM ALEX SALMOND THURSDAY 23rd AUGUST
FORMER FIRST MINISTER TAKES LEGAL ACTION AGAINST SCOTTISH GOVERNMENT IN COURT OF SESSION


“For many months now, and on the advice of Senior Counsel, I have attempted to persuade the Permanent Secretary to the Scottish Government that she is behaving unlawfully in the application of a complaints procedure, introduced by her more than three years after I left office.

This is a procedure so unjust that even now I have not been allowed to see and therefore to properly challenge the case against me. I have not been allowed to see the evidence. I have tried everything, including offers of conciliation, mediation and legal arbitration to resolve these matters both properly and amicably. This would have been in everybody’s interests, particularly those of the two complainants. All of these efforts have been rejected. The Permanent Secretary chose to deny me contact with any current civil servant, many of whom wished to give evidence on my behalf and access to documentation to allow me to properly challenge the complaints, all of which I refute and some of which were patently ridiculous. The procedure as put into operation by the Permanent Secretary is grossly unfair and therefore inevitably will lead to prejudicial outcomes.

It is therefore with great reluctance that I have today (Thursday 23rd August) launched a Judicial Review in the Court of Session which will decide the issue of the lawfulness of the procedure which has been used against me. If I lose then I will have to answer to the complaints both comprehensively and publicly. Until then I am bound to say nothing which would impinge on the Court proceedings. In our submissions on Judicial Review we have asked that the complainants’ identity be protected.

If the Court of Session finds in my favour then the administration at the senior levels of the Scottish Government will have the most serious questions to answer. In my opinion and for whatever reason the Permanent Secretary has decided to mount a process against me using an unlawful procedure which she herself introduced. I will let a real court decide whether it was lawful for her to do so.”

  1. The press conference was held on August 24th and was entirely devoted to the
    process of judicial review with no discussion allowed on the nature of the complaints.
    However, the Daily Record had also been leaked the detail of one of the complaints
    taken directly from the Permanent Secretary’s Decision Report or an extract from it
    and published those details on August 25th. The Daily Record editor later confirmed
    on a documentary presented by Kirsty Wark on BBC television on 17th August 2020
    that they had been in receipt of such a document.
  2. The timing of these leaks is summarised in the enclosed review report from the ICO
    (appendix A paragraph 4.6) who concluded that they had “sympathy with the
    hypothesis that the leak came from an employee of the SG and agree that the timing
    could raise such an inference”. There were in fact two leaks. First the leak to Mr
    Clegg on the evening of Thursday 23rd August followed by the release of details of
    one of the complaints published in the Record on Saturday 25th August. These leaks
    were carried out with no consideration to data protection laws, and with no regard to
    the interests or rights of the complainers or indeed myself. They were considered by
    the ICO to be prima face criminal. They set off a media storm deeply damaging to my
    reputation.
  3. On 29th August I resigned from the SNP and launched a crowd funder to assist with
    the costs of Judicial Review challenge in the Court of Session. The crowd funder
    attracted 4146 donations in three days and I closed it at £100,000 on Saturday 1
    September.
  4. Shortly thereafter, my legal team lodged the petition for Judicial Review. Their advice
    was that the chances of success were high. The initial petition has been provided to
    the Committee. The Permanent Secretary has made much of the fact that the original
    petition for judicial review did not found on the prior contact of the Investigating
    Officer with the complainers. In fact this would have been impossible given that this
    information was not provided to us until the beginning of November 2018. Indeed
    there is overwhelming evidence that this information was concealed by the Scottish
    Government. Had it been provided earlier, it would certainly have been included as a
    further basis for the judicial review. Even without it, there were multiple substantial
    grounds for a successful review. Those were not decided simply because the Scottish
    Government conceded the petition prior to the matter being argued.
  5. On 4th October at the first hearing of the judicial review (and on my insistence), my
    legal team lodged a motion to protect the anonymity of the complainers. The Scottish
    Government chose not to attend this hearing.
  6. On 16th October the Scottish Government lodged Answers to the Judicial Review
    which leant heavily on the technical argument that the Petition was out of time being
    more than three months after the investigation started. We were not concerned that
    there was any force to that argument and I personally took that as a sign of weakness
    and a lack of confidence in their substantive case. That argument was later
    abandoned.
  7. On 21st October we received information that the new complaints process had not been published on the internal Scottish Government intranet until February 2018 which opened the question of how realistically complaints could have been submitted under it in January 2018. We also learned that the press statement released by the Permanent Secretary on August 23rd 2018 had been deliberately worded to conceal this fact (appendix B shows the original wording and appendix C the version as recently amended on 21st August 2020.) The original wording reads “Internal procedure agreed in December 2017 and published at that time on the ScottishGovernment Intranet”. The new wording reads “Internal procedure agreed in December 2017 and published in February 2018 on the Scottish Government intranet” Our requests for further documents were informed by those revelations.
  8. On November 5th the Government finally disclosed the prior contact of the
    Investigating Officer with the complainers and that both complainers had been in
    contact with various Scottish Government staff in November and December 2017. As
    we now know this was only after Senior Counsel insisted that they do so. We adjusted
    the Petition accordingly.
  9. On November 6th we petitioned the court for release of documents. Lord Pentland
    reminded the Government of their duty of candour as a public authority to release all
    relevant material saying, according to a court note taken by my legal team, that “A public authority usually takes the view that it should disclose everything in a matter of this nature. Specifications are unusual for that reason.”
  10. Despite this, on 16th November when the first tranche of 147 documents were
    produced, followed by a further 70 pages on the 19th of November, it was clear that
    much information was missing, particularly on the origins of the procedure.
  11. During November 2018 we became concerned about the possibility of the
    Government attempting to sist (delay) the judicial review and (mindful of their likely
    loss in court) seek to emphasise instead the police investigation. We have a witness
    precognition (statement) which recounts that in late November 2018 a Special
    Adviser told the witness that the Government knew they would lose the JR but that
    they would “get him” in the criminal case.
  12. On the 1st December the ICO criminal investigation officer informed us that a
    “criminal offence may have been committed” on the leak of data and that their
    investigations were continuing.
  13. On December 14th we successfully petitioned for a Commission on Diligence. It was
    opposed by the Government who had maintained that no more relevant documents
    existed. Remarkably, the Scottish Government had even signed a certificate
    confirming to the Court that no documents existed. In direct contradiction of that
    position, in the immediate run up to the Commission, during the Commission itself
    and in the aftermath of it, many batches of documents were produced which exposed
    many incriminating pieces of evidence against the government’s position.
    Furthermore it became clear that the Government’s position until that point on the
    nature of the contact between the Investigating Officer and the complainers was
    untrue. We also were aware that the Government’s position introduced into their
    pleadings that the first time the First Minister knew of the complaints against me was
    on April 2nd 2018 was also untrue.
  14. On 19th December at the first hearing of the Commission the Government’s own
    Senior Counsel (properly) apologised to the Commissioner on multiple occasions for
    the late provision of documents. A further 18 pages of documents were then produced
    from the Investigating Officer. More documents emerged after the second hearing of
    the Commission on 21st December. In a further procedural meeting of the
    Commission on 28th December it emerged that potentially many more documents
    existed. My legal team then decided to call the Chief of Staff Liz Lloyd and Principal
    Private Secretary Mr Somers to the Commission as potential havers (people who hold
    documents) at the beginning of January 2019. This was when suggestions emerged of
    meetings with a complainer in the First Minister’s Office on 20th and 21st November
    2017.
  15. On January 3rd my lawyers were contacted by Government lawyers with an offer to
    concede the case on the basis that the process had been unlawful, unfair and tainted by
    apparent bias.
  16. On January 8th 2019 Lord Pentland, after a hearing in the Court of Session, issued an
    interlocutor to that effect (appendix D and reduced both the Investigation and
    Permanent Secretary’s Decision Report. The Government provided undertakings not
    to distribute documents. Those undertakings were recorded in the Minute of
    Proceedings. Expenses were awarded on the punitive scale of agent and client, client
    paying basis. The interlocutor found that the actions of the Permanent Secretary had
    been unlawful on the grounds that the process had been carried forward in
    circumstances which were “procedurally unfair” AND “tainted by apparent bias”. My
    senior counsel pointed out in court that the Investigating Officer’s multiple contacts
    with the complainers were “bordering on encouragement”
  17. On the same day the Permanent Secretary released a press statement asserting that on
    all other grounds the petition had been dismissed. This was deliberately misleading as
    in fact none of the many other grounds of challenge required to be heard, since the
    petition had been conceded prior to the hearing and her whole decision report reduced
    by the court. My legal team and I remained confident on the many other legal heads
    of challenge I had brought. These are all contained in the Record (court document
    containing petition and answers) which the committee has.
  18. The First Minister told Parliament that the nature of the contact between the
    Investigating Officer and complainers was in the nature of “welfare support” Clearly
    she was misinformed because it is precisely because the Government had misled the
    Court in its pleadings about the nature of the contact that the Government case
    became, in the view of their own counsel, unstateable. This was confirmed to the
    Committee by the Lord Advocate in both of his evidence sessions on 8 September and
    17th November 2020
  19. At no stage was I, or indeed Parliament, informed of the fact that both Senior and
    Junior Counsel representing the Government had intimated in December 2018 their
    intent to resign from the case if the Government did not concede by January 3rd 2019.
  20. I am now aware from documents obtained by this Committee that the Investigating
    Officer’s behaviour involved contact with complainers before, during and after the
    procedure of a kind which would not stand any reasonable test of impartiality. I
    believe this included briefing the complainers and witnesses and pejoratively
    summarising my legal advice. I also understand that subsequent to the JR petition
    being lodged, she also briefed complainers and others of the Lord Advocates position
    on sisting the Judicial Review.
  21. I am now aware from documents recently obtained by this Committee that the
    Permanent Secretary met one complainer and phoned the other in mid process before
    contacting me on March 7th 2018. I was astonished when I discovered this). There is
    nothing in the procedure which allows for this and I would certainly have wanted to
    argue this in our judicial review petition as behaviour incompatible with the role of an
    impartial decision maker and further evidence of bias against me. The failure to
    disclose this meeting either in the civil or criminal case despite court orders is a
    serious matter which I intend to take forward with the appropriate authorities.

SUMMARY


The procedure adopted “at pace” in late 2017 was not just “tainted by apparent bias” in the of the Investigating Officer but “procedurally unfair” in itself. Only my reluctance to sue the Government as a Former First Minister prevented me from exercising that right earlier. Instead I offered conciliation, mediation and then arbitration which I was prepared to accept as binding. All such attempts at swift and confidential resolution of the legal issues without the expense and confrontation of court proceedings were rejected without consulting the complainers, in case of mediation without initially consulting the complainers and in the case of arbitration without consulting the complainers at all.

There is an overwhelming likelihood in my view that the criminal leak(s) of August 21/222018 came from within Government and were committed with the intention of damaging my reputation but with no regard whatsoever to the interests of the complainers. The advice of my counsel at the outset was that I had a very strong case which only further strengthened as the process continued. The evidence was forced out of the government by a lengthy and expensive commission process, despite the government having assured the Court and my legal team previously, that they had produced all relevant documents. This turned out to be untrue.

I have yet to read the government’s legal advice from external counsel. This is despite two parliamentary votes to force its release. It is rare in my experience, for the Scottish Government to behave unlawfully. It is surely rarer still for the Government to only concede a case when both of its external counsel threaten resignation.

I understand that expenses being awarded on an agent and client, client paying basis reflects the court’s dissatisfaction with the conduct of the case from the Government. That failure was not due just to incompetence. The pattern of government lack of candour and a systematic failure to disclose has been deliberate and consistent since 7 March 2018It continued through the judicial review process and then my criminal trial. To my astonishment, it continues to date with a persistent failure to produce all relevant documents to the parliamentary Inquirywhich has forced two Parliamentary votes and triggered an unprecedented procedure under s.23 of the Scotland Act. It has also seen the recall of a number of government witnesses to clarify and in some cases correct their evidence.

In short, it remains a matter of deep regret that I had no option but to take the Scottish
Government to the Court of Session. I did so very reluctantly and only after every other
avenue had been exhausted. But courts exist for a reason. They exist because when Governments act illegally there must be a remedy for the citizen. In this case, the illegality was finally conceded but only after a legal process which will have cost upwards of £750,000 of taxpayers money and which caused immense strain and distress to all involved. The behaviour of the Government was, in my view, a disgrace. But actions have consequences. Accountability is at the heart of the Scottish Parliament. The rule of law requires that those who have acted illegally are held to account. It is now the job of this Committee to resolve how that is best done.

Ends
Alex Salmond
27th January 2021

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10 Responses to An Innocent Man

  1. They keep talking about a leak fro an unknown source ……. lol
    I picked this up online somewhere …..
    I discovered with a high degree of certainty that the leaker was Liz Lloyd, Chief of Staff to Nicola Sturgeon…….

    Just saying

  2. Grouse Beater says:

    By all accounts, it was.

  3. This reeks. Leslie Evans and David Harvie. They must be hoping that no-one copied any messages. I still think Nicola was assessed as to how they could entrap her in the process- and then bullied and manipulated past the point of no return.. Her weird and sudden change of course raises lots of questions…….Leslie Evans and David Harvie. I hope someone has all their messages. And shares.

  4. Oh come on. Nicola was the spider in the centre of this web, out to get her former boss whom she was concerned might try to make a come-back. Remember the original plan was to leave the complaints on file and only bring them our if Salmond put himself forward for candidate vetting. Sturgeon is a past master at putting other people front and centre of things she does but doesn’t want to take the consequences for. She was pulling the strings, her and her husband, it’s really beyond doubt. Take off the rose-coloured spectacles.

  5. Totaly damming and a huge blot on the Scottish Government, Nicola Sturgeon. Leslie Evens and all civil servants and politicians involved. There is no doubt that all of this and the identities of the complainers is known to most if not all SNP politicians, The fact that they are still offering support to the leadership is a reflection on their personal moral compasses. They are a disgrace, and because of their silence they will be responsible for the carnage that will be the May elections

  6. sadscot says:

    What a monumental mess.

  7. sadscot says:

    Amidst the politics going on within the Committee, one aspect is bothering me, having spent thirty years in the Civil Service myself.
    When an Investigation is begun those involved in it must abide by certain absolute requirements. Those requirements are set out very clearly and everyone involved is made aware of them. They are also informed that the entire process is confidential and must not be discussed with anyone else. Warnings are given that anyone breaching these requirements, even if they are the complainant, will face disciplinary action.
    More importantly, the person appointed to conduct the Investigation cannot have had any discussion with anyone involved in the process concerning the grievance under investigation.
    For me, the Committee are ignoring these matters in order to focus on politics instead. I’m appalled by that.
    Why is Leslie Evans still in a job? She oversaw this whole shambles. If the Committee is meant to be establishing how the taxpayer lost half a million then the buck stops with Evans. By appointing Judith McKinnon to investigate she immediately breached the CS rules for formal investigations. JM had met several times with complainants. She therefore should not have been appointed as IO.
    We have heard reasons given for complainants discussing their grievances together. One was that they were providing moral support for each other. Sorry, in a CS Investigation, no such luxury exists. You cannot discuss any aspect of your case outwith the investigation. Yet this group of women were discussing their cases together, but that’s ok?
    I’m really alarmed that so many on the Committee are ignoring these things. For the appointment of McKinnon as IO especially, is why, ultimately, the court found that the whole process was “unlawful, unfair and, apparently, tainted with bias”. And at the top of the tree was Evans. SHE is the reason the taxpayer lost half a million. Why are MSPs on the Committee not making a huge deal about this? Evans is not a lower level manager. She’s the most senior Civil Servant in Scotland yet she set up a corrupt investigation and ignored CS requirements for such investigations. That is gross misconduct.
    It is deeply worrying that her gross misconduct is being overlooked because so many on the Committee have their sights on juicier targets.

  8. Grouse Beater says:

    The Hamilton QC Inquiry might be more thorough, or the accumulation of both Inquiries be enough to shame them into resignation. In any event, if Nicola Sturgeon – a gravely wounded FM, in my view – goes, the reign of the key civil servants is over.

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