DID JOHN SOMERS LIE TO THE FABIANI INQUIRY?

Documents just released by the Scottish Government strongly suggest that the First Minister’s Principal Private Secretary John Somers attended a crucial meeting on 13 November 2018 where advice was sought from senior counsel on the crisis that had arisen in the defence of Alex Salmond’s judicial review action.

Somers has previously denied on solemn affirmation at the Fabiani inquiry that he had any such involvement in the judicial review.

If Somers was indeed at the meeting with counsel on 13 November 2017, it seems clear that he has lied to the inquiry.

It is inconceivable that he could have forgotten participating in such a meeting.

Somers’s evidence

On 1 December 2020, Somers told the Fabiani inquiry of his sole involvement in the judicial review procedure:

“On the JR, and specifically the commission, I was asked on 21 December 2018 to search for any documents, emails, text messages or notes, using a number of suggested search terms. Neither I nor the private office held any documents that fell within the suggested parameters.”

He was unequivocal about having had no other involvement:

“Other than carrying out and overseeing the requested searches of the First Minister’s private office, as part of the commission and diligence, I had no involvement in the judicial review.”

The newly disclosed documents

On 13 November 2018, at 13.55, a Scottish Government official whose name has been redacted emailed senior counsel Roddy Dunlop QC to confirm that day’s emergency consultation with the First Minister and Permanent Secretary.

The official confirmed that the meeting was set for 4.45, and continued:

“The Perm Sec is intending to come along. Liz Lloyd will be there, as will [redacted]. John Somers, FM Private Office will be there.”

The email was copied to other redacted recipients who may or may not include John Somers. If he was copied in, then he would have had access not only to the email exchange but to the copious documentation that was to be discussed at the consultation, and which was attached to the email chain, including the views of Nicola Richards, Judith Mackinnon and the First Minister’s Chief of Staff Liz Lloyd on various matters.

In that case, even if, for some unforeseen reason, he did not attend the meeting, he would still have had “involvement” in the judicial review in any meaningful sense of the word.

Indeed, it’s hard to see how he could have been due to attend such a meeting without having had some “involvement” up to that point. If he didn’t, why was he due to attend at all?

The Scottish Government’s evidence

If Somers was at the meeting, contrary to his own evidence on solemn affirmation at the inquiry, his attendance is also contrary to the Scottish Government’s stated position.

On 13 September 2019, they published their response to the following question submitted under the Freedom of Information (FOI) provisions:

“Further to the FOI answer of 29 May, please list attendance of Scottish Government officials and Ministers and Special Advisers at each of the 17 meetings and conference calls with counsel defending the judicial review between 23 August and 3 January 2019.”

For the meeting on 13 November 2018, their answer was as follows:

“13 November 2018: First Minister, Elizabeth Lloyd, Permanent Secretary.”

No mention of John Somers.

The First Minister’s evidence

Nicola Sturgeon also gave evidence about the meeting to the inquiry on 3 March this year:

Murdo Fraser: We know that you attended a meeting with counsel on 13 November. Who was at that meeting and what was discussed?

The First Minister: Clearly, I was at the meeting, as were senior and junior counsel, the permanent secretary and Liz Lloyd—my chief of staff. I think that SGLD was represented, as well.
I requested the meeting; it was part of what I thought was the proper thing to do.

No mention of John Somers.

Why are there no notes or minutes of this and other meetings?

Those of you who are, like me, of a cynical turn of mind, will no doubt wonder if the extraordinary lack of minutes or notes of this and other meetings is somehow related to these kind of matters.

This is how Deputy First Minister John Swinney explained things in his letter to the inquiry of 8 March 2021:

“My letter of 5 March confirmed that the Scottish Government does not hold formal minutes of meetings with Counsel during the Judicial Review and, in response to the clerks’ follow-up question, we have not identified any record of minutes having been prepared or previously held by the Scottish Government.

“I asked officials to check what documents are available, prioritising the meetings on 2 and 13 November 2018, which the Committee has highlighted. Officials have identified a small number of contemporaneous email exchanges referencing these meetings. This includes exchanges following the meeting on 2 November and emails ahead of the meeting on 13 November 2018, attended by the First Minister and Permanent Secretary.

“These exchanges make clear that the focus of the meetings was on discussing and agreeing with external Counsel adjustments to the pleadings for the judicial review. I have asked officials to urgently … publish these email exchanges as soon as possible this week.”

Well, now we have them, John.

And as usual they give rise to many more questions than answers.

A Very Scottish Coup

All of these questions arise of course from my trying to keep up with the shocking revelations now coming out on a daily basis about this Very Scottish Coup, and which keep delaying the completion of Parts Three and Four.

The Government’s now published legal advice, which I’m continuing to review in detail for this purpose, is shocking almost beyond words. In particular, I keep thinking of Judith Mackinnon’s evidence that she can’t really see what she did wrong, and Nicola Sturgeon’s evidence that she just didn’t know anything about anything.

It truly is tempting just to abandon the whole enterprise of rational analysis when we’re this far through the looking glass.

Anyway, for those of you still hanging in there, my usual apologies for the continued delay.