Alistair Bonnington

We already know that the present and former first ministers will call each other liars. Somehow the committee must decide who is more truthful.

Ascertaining the credibility and reliability of witnesses is never a simple task even for the most experienced of lawyers. Centuries of learning has resulted in our Scots system testing the oral testimony of witnesses by challenging them with relevant documents. We have plenty of proof that this technique can greatly assist the task.

This committee’s work has been hampered throughout by the refusal of the Crown Office to supply it with documents from Salmond’s criminal trial which could well be vital to ascertaining the elusive truth in this inquiry.

If what Mr Salmond says about these documents is even partially accurate then the committee cannot hope to complete its remit properly unless these documents are before it. The remedy is surely plain. The committee must approach the High Court using s.23 of the Scotland Act 1998. This is something they threatened to do about 10 days ago, after which the Crown Office provided some documents to them voluntarily. But at the last meeting of the committee, it emerged that the Crown Office has released only the WhatsApp exchanges between the women complainers in the Salmond criminal trial.

Now these documents are of no relevance and no use to this committee. What would be of relevance is documentation showing some intervention in these exchanges, or associated communications, by members of the Scottish government, Scottish civil servants or SNP officials. I don’t know if such documentation exists and neither does the committee. That is a shameful state of affairs. The committee has to be allowed access to the best evidence – the evidence on which its ultimate decisions will depend.

It is now clear that the only way that best evidence can be brought shivering into the clear light of day, is for the committee to apply to the High Court for an order under s.23. The wisdom of such a course of action seems clear. Peter Murrell, the First Minister’s husband, has been distinctly reluctant to attend before the committee again for further questioning. His refusal to return on 2 February to assist with further evidence was most likely based on his belief that the committee wouldn’t force the issue. But consideration by Mr Murrell (and no doubt by his lawyers) of the legal risks he was running by his refusal, has magically made him a compliant witness once more. After all, s.23 of the Scotland Act says that the Scottish Parliament “may require” witnesses to attend. That doesn’t sound much like a voluntary matter to me. So had Mr Murrell continued to refuse to re-appear at the committee, then, using s.23, he could have been dragged there by compulsion – in chains if necessary.

Those of us who have spent more years than we may care to remember “treading the boards” of our Scottish courtrooms are probably the last people who would recommend to a friend that a court is a good way of settling disputes. But sometimes they are the only way left to resolve problems. It appears to me that the only way for the committee to complete its work to the highest standard is to take that route in this case. The committee members have shown admirable independence and application in their work thus far.

Going to the High Court is not a bridge too far.

Alistair Bonnington is a former honorary professor at Glasgow University School of Law.