STATEMENT FROM DAVID DAVIS IN RESPONSE TO NICOLA STURGEON.

Statement from David Davis MP in response to what Nicola Sturgeon said at FMQ’s.

There now follows a Statement from David Davis MP in response to the misleading information Nicola Sturgeon made to Parliament. As I believe our Parliament and the people of Scotland deserve the accurate facts I have published the statement today.

Scottish Government Statement

Yesterday evening, the Scottish Government issued a statement claiming to refute my comments in the House of Commons regarding disclosure of documents in the judicial review.

They said:

‘The assertions made by David Davis are wrong- this document was not withheld, it was provided to the Court on 21 November 2018.

The Scottish Government absolutely refutes the allegation that civil servants sought to obstruct or show contempt for the court process.’

Roddy Dunlop’s Account of the Disclosure

The Scottish Government offered up as evidence for their statement legal advice from Roddy Dunlop QC on 17 December 2018.

If you read that advice, however, you see that it is in fact evidence substantiating the comments I made.

On Wednesday 12 December 2018, junior counsel for the Scottish Government discovered that a redaction of an email address – one belonging to a Police Scotland officer, Nicky Page – had been wrongly made to a document without her instruction.

The document had therefore not been disclosed to the court. Only an inappropriately redacted version of it had been disclosed.

The unredacted version showed emails about potential reporting to police, against the wishes of complainants, and a draft of the policy itself, had been sent to Police Scotland on 23 November 2017, albeit supposedly inadvertently.   It is not hard to see why counsel thought the redaction seriously improper.

An ‘immediate and clear’ direction was given by counsel that the unredacted email should be included in a disclosure bundle. This was thought essential by counsel on the grounds of the duty of candour to the court.

On Thursday 13 December counsel realised that their direction to disclose the unreacted email had not been complied with.

The Scottish Government claimed this was for personal data reasons- a judgment they reached without consulting counsel and without proactively telling counsel.   Given that it was going to the court this is spectacularly disingenuous.

[This was so serious that] on Friday 14 December counsel reached the view that they could ‘not properly advise the Court that the Scottish Government had discharged its duty of candour’ as a result of this failure to disclose the unredacted document.   They clearly view it as very important. It does not take any reading between the lines to see that counsel is angry.

Accordingly, the Scottish Government conceded the Commission and Diligence process, which proceeded to uncover further evidence which had not been disclosed to the court.  This process is massively expensive and not normally necessary. The unredacted document and these further emails were finally disclosed on the 18th December 2018

Context of Roddy Dunlop’s Advice

Further, it is important to note the broader reasons behind counsel preparing this advice.

The note was written in response to events (i.e. the failure to disclose the unredacted document) ‘which led us to consider very seriously whether we were bound to withdraw from acting for the respondents in this matter’.

Counsel state: ‘we trust it will be obvious why this matter has given rise to such concern on our part about our ability to continue to act’.

The failure to disclose the document left counsel ‘in an extremely difficult position professionally’.

The fallout of the failure to disclose was very grave on counsel’s reading:

‘It is clear that the Lord Ordinary is unimpressed at being faced with a situation in which it appears the Scottish Government has not acted with full candour and in which a commission has had to be appointed. It seems inevitable that parties will now be put to expense and inconvenience of a commission’.

It is inconceivable that counsel would have written to the Scottish Government in such strong terms if disclosure had been properly made on 21 November, as apparently claimed by the First Minister today at Holyrood.