Events in 2017
Late Oct: Allegations of harassment surfaced at Westminster in late October and a whole range of people inside the Scottish Government raised concerns about alleged sexual misconduct involving Scottish ministers and former ministers prompting the announcement of a new zero-tolerance approach to sexual misconduct by the Deputy First Minister, John Swinney.
31 Oct: Holyrood civil service chiefs excluding the Special Advisor to the First Minister, Liz Lloyd, but including senior civil servant, John Somers, the First Ministers “gatekeeper” were in attendance together with other civil servants at a meeting convened by Nicola Sturgeon with the purpose of reviewing civil service procedures for the handling of workplace complaints.
31 Oct: James Hynd, Head of Cabinet, Parliament, and Governance, for the Scottish Government was tasked by Leslie Evans on 31 Oct 2017 to update long-standing civil service procedures on sexual harassment covering serving ministers. Instead, acting on his own initiative and without any political direction, he decided to make former ministers the focus of his first draft of the policy, partly because he was in charge of the Scottish government’s ministerial code and there was a “gap” that needed to be closed. He conceded he was aware of gossip about alleged misconduct involving former First Minister, Alex Salmond, which Salmond had repeatedly denied, before choosing to include former ministers in the new anti-harassment policy. He insisted he alone decided to make former ministers the focus of his first draft of the policy, partly because he was in charge of the Scottish government’s ministerial code. He said he thought it was a “gap” that needed to be closed.
08 Nov: 1233. Hynd emailed Richards and MacKinnon a copy of the first draft of the policy “Handling of Sexual Harassment Complaints Against Former Ministers.”
16 Nov: 1205. Hynd emailed the (Private Secretary 1 to Leslie Evans). (Policy on Complaints Against Ministers.” As requested”. James.
17 Nov: Hynd circulated to the civil service senior management team and Liz Lloyd (first sight) a second draft procedure titled “Handling of sexual harassment complaints involving current or former ministers.”
Afternote: Lloyd stated that the inclusion of herself in the circulation of the draft created a requirement to identify and amend the ministerial code, if necessary since the code is the responsibility of the First Minister. But Hynd said he took the decision to widen the scope of the revised procedure without reference to anyone since he had responsibility for the Ministerial Code.
17 Nov: Lloyd maintains she did not discuss the procedure or share a copy of it with the SNP.
17 Nov: A letter setting out proposed procedural changes to the civil service code for the handling of sexual harassment complaints was forwarded for comment to the Cabinet Office in London. In the email reply, an unidentified senior civil servant wrote to say that they were: “very uncomfortable to be highlighting a process for complaints about Ministers and former ministers”.
Afternote: The Scottish Government was thrown a lifeline by a very senior civil servant in London who strongly advised against any widening of the proposed new guidelines of employee harassment to include former ministers or in this case former First Ministers since this could only rope in Alex Salmond and there was no precedence within the civil service of a formal internal inquiry into the conduct of a senior officer who was no longer in the employ of the state. That so clear a warning was ignored beggars belief.
17 Nov: Although events are unclear at this time and this is conjecture, the correspondence between the Permanent Secretary and London must have encouraged Evans to instruct Hynd to desist from any further development of a retrospective draft lookback procedure and to stick to the remit she had given him on 31 Oct.
17 Nov: Lloyd and an unnamed senior civil servant, (probably Somers) agreed that an “instruction” should be compiled and sent from the First Minister to the Permanent Secretary to provide clarity that consideration of a policy relating to ministers and former ministers was within the scope of the original cabinet commission. And, in furtherance of this, after an exchange of emails, the two officers amended the content of the draft “instruction” to ensure it harmonized with the latest draft procedure so that when considering it, it would be clear that the draft policy would scope incidents earlier than 2007. A copy of the final draft note was forwarded to the First Minister’s office for her consideration over the weekend to ensure work on the procedure could continue.
20 Nov: Miss A, arranged a meeting with Somers at which she told him of experiences in the past that she wanted to share in a way that would improve the organization and make sure that no one else would have to go through that sort of thing again. She stressed she was not making a complaint, she simply wanted to assess her options for how she could best share the information. An option would be to speak to the First Minister which was why she had approached him. Somers said he felt “overwhelmed” by the disclosure and with the permission of Miss A, he informed his line manager Barbara Allison.
21 Nov: Somers and two unnamed officers met with Miss A and agreed she would take the matter up directly with his line manager Barbara Allison, with a proviso that if she felt she was not being taken seriously or no one was listening to her, she should get back in touch with Somers who would set-up a personal meeting for her with the First Minister. He never heard from her.
He went on to say that he did not tell the First Minister that Miss A had confided in him because it wasn’t his experience to share and had he done so he would have put the First Minister in a state of knowledge about something she could not have taken action upon at that point?”
Afternote: His decision not to inform the First Minster denied Miss A the informal meeting she had asked for and escalated events from informal to formal. His reasoning was flawed since it was based on a rebuttable assumption. His choice of words is also significant. “at that point” could be a reference to the draft policy which he was working on with Lloyd. He fine well knew what he was doing.
Afternote: 15 Sep 2020: In her opening statement to the inquiry the Scottish Government’s Director for Communications, Ministerial Support & Facilities, Barbara Allison, who was Director of People from 2009 to 2016, said that Alex Salmond was a “visionary and dynamic” and although demanding and difficult to work for people also expressed that they enjoyed working for him. She had never heard of sexual misconduct concerns about him while he was the First Minister. Nor had she heard of any concerns being escalated to the status of formal complaints while she was in charge of human resources.
Afternote 2: 15 Sep 2020: Allison said she was a “huge advocate” of informal resolution, stating that if a matter could not be resolved through this means then absolutely people must have recourse to a formal process. She then told the Inquiry that she was first notified of concerns in late 2017 when two unnamed female civil servants raised them with her. Late 2017 is a wishy-washy statement and she should be instructed to provide dates and circumstances since it is to be assumed that one of the civil servants would be Miss A who was adamant in an earlier interview with Somers that she did not wish to make an official complaint. And where did the second civil servant spring from?
Afternote 3: 15 Sept 2020: Allison said she had not raised any issues of bullying or harassment with either Evans or Nicola Sturgeon and for clarity, she emphasized to the inquiry that she was not aware of any issues about sexual harassment” and added that she was a “huge advocate” for informal resolution, stating that if a matter could be resolved through this process, then “absolutely people must have recourse to a formal process”.
21 Nov: Sturgeon, Evans, and other names redacted persons met and discussed the draft procedure. Minutes of the meeting are not available.
22 Nov: Somers formally emailed Sturgeon’s “instruction” to Leslie Evans, the head of the Civil Service in Scotland. It read:
“As is clear from the continued media focus on cases of sexual harassment, in many instances, people are now making complaints regarding actions that took place some time ago. I wanted to make clear that in taking forward your review, and the new arrangements being developed, you should not be constrained by the passage of time. I would like you to consider ways in which we are able to address if necessary any concerns from staff – should any be raised – about the conduct of current Scottish Government ministers and also former ministers, including from previous administrations regardless of party. While I appreciate that the conduct of former Ministers would not be covered by the current Ministerial Code, I think it fair and reasonable that any complaints raised about their actions while they held office are considered against the standards expected of Ministers. I would be grateful for confirmation that this particular aspect is being included as part of the review you are leading.”
24 Nov: Hynd, Lloyd and a member of the Permanent Secretary’s office, and a member of the First Minister’s office attended a meeting to further discuss the content of the “instruction” and to establish and agree on clear lines of responsibility between the First Minister and the Permanent Secretary preventing the First Minister from stopping the Permanent Secretary, who has a duty of care to civil servants, from investigating a sexual harassment complaint made by a civil servant against a minister if the Permanent Secretary judged there was something to investigate. Further input from Lloyd included the view that it was essential that the First Minister should be made aware of an investigation or allegation into a serving minister, before the event, in order to determine if, under the ministerial code, that minister could remain in post whilst an investigation was conducted.
24 Nov: Lloyd later ascertained that she had no knowledge at this time of the incidents that were subsequently investigated under the new procedure.
Afternote: 08 Sep 2020: Evans had previously told the inquiry team that she would not see a “natural role” for a special advisor in the Scottish Government response to the judicial review brought by Alex Salmond. But a freedom of information response last year listed 17 meetings at which lawyers involved in the judicial review met with Nicola Sturgeon or senior staff, with Lloyd present at three meetings in Oct and Nov 2018. Faced with the revelation Evans was forced to correct her evidence to state that Nicola Sturgeon’s political special advisor, Liz Lloyd, did take part in meetings about the case.
29 Nov: Richards and MacKinnon met with Miss A and discussed the content of the revised procedure they were proposing to introduce so that harassment complaints could be retrospectively actioned against former Ministers. Changes were agreed and the document was sent to the Cabinet Secretariat to be retyped.
01 Dec: Two days later Richards emailed Hynd, the Head of the Cabinet Secretariat: “Would you be able to send me the latest version of the process I agreed with Leslie Evans that I would test against some key individuals?” Later that day Hynd replied, “here you are” attaching the latest version of the revised draft procedure.
05 Dec: Richards and MacKinnon met again with Miss A to discuss the content of the latest revised draft procedure seeking and gaining from her confirmation that had the procedures been in place at the time she was sexually harassed it would have been of great benefit providing clear instructions as to the courses of action available to her.
05 Dec: Richards met with Evans and other colleagues to discuss the draft document and agree on changes, where necessary. She then worked late into the evening updating the document. Just before midnight that same day, she forwarded the revised procedure, under cover of an email, to the Head of the Cabinet Secretariat, Hynd, MacKinnon, and an unnamed lawyer. The email stated: “As discussed today, I’ve made some revisions to the process.”
Afternote: Eight drafts were compiled and before and after copies of each revised/new procedure will be retained on a central database. The inquiry would be well advised to request copies so that changes made after the meetings with the first two complainants would be identified and their impact assessed.
6 Dec 2017: 0528. In the very early hours of the morning Evans emailed Richards, Hynd, and a third person writing, “Spoke with John S (Swinney?) last night. We agreed you would send up tweaked codes in draft without any letters just now. and as discussed, info on the steps and touchpoints involved in the process also useful. Keep me posted – back in the office tomorrow but happy to talk. John (Swinney?) also I’m sure.”
Afternote: Somers told the inquiry that he had no involvement in the development of the procedure used against Alex Salmond. This is not true. Somers, in his capacity as Sturgeon’s Principal Private Secretary, had a key role in developing the policy at a critical time. The “tweaked codes” which Somers and Evans had agreed to “send-up” to Sturgeon constituted the recast procedure which changed at a stroke everything which had been developed by Hynd and others to that point, by removing the First Minister completely from the process. The “letters” which were now not to be sent to Sturgeon were letters which Hynd had been instructed by Evans to draft, in line with the procedure as it had existed prior to this discussion with Somers, and for the purpose of intimating the new procedure to former Ministers and former First Ministers when it was approved by the First Minister in due course. Following the discussion between Evans and Somers on the night of 5 Dec 2017, these letters simply disappeared from the development process, and the Scottish Government has never disclosed them to this day, at least not in the papers which have been made available to the public by the inquiry. Exactly what comprised the “steps and touchpoints involved in the process” which were evidently also discussed by Evans and Somers remains a matter of guesswork since, of course, no-one at the inquiry asked Somers yesterday, or has ever asked Evans, what was meant by these terms. What is clear is that both Evans herself and Somers were “happy to talk” to Richards, Hynd, and the third person about these “steps and touchpoints” in the procedure as now radically recast. There is a hugely significant context of this very obvious involvement of Somers, acting on behalf of Sturgeon, in the development, actually, in the complete recast of the procedure. For now, it is worth noting that Somers’s evidence on affirmation was given, as Somers himself pointed out, with the specific endorsement in advance of the Scottish Government. On 6 Nov 2020, Deputy First Minister Swinney wrote to the inquiry: “Somers was not involved in the development of the procedure…” Poor John Swinney. He gets all the dirty jobs. Extracted from:(https://gordondangerfield.com/author/deckcarrington)
07 Dec: Around this date, MacKinnon met with Miss B.
10 Dec: Evidently there was a deadline for the submission of the procedure for the signature of the First minster and this was confirmed in yet another email and document enclosure and to the same people in which Richards wrote: “I’ve updated the timeline and this is the final version of the policy I’ve sent to Evans.” The “air” of finality clearly suggested that the civil service team, supported by legal opinion were confident it would be signed off and introduced.
Afternote: Hynd said he had made the running and compiled the “new” retrospective harassment procedure. But records indicate Richards and Evans made the running.
Afternote: 25 Aug 2020: Selective amnesia!!! Hynd, Head of Sturgeons Cabinet Secretariat, in his evidence, given under oath to the Alex Salmond inquiry stated:
“To be clear if I was not earlier – the first that I heard about any allegations was, I think, on 24 Aug 2018, when there were press reports. I knew nothing before then about any complainer or anybody raising concerns. I knew nothing about the appointment of any investigating officer or about any sharing of the draft procedure with any individuals.”
12 Dec: Evans wrote to Sturgeon:
“You wrote to me on 22 Nov regarding the review of the Scottish Government’s policies and processes on sexual harassment. As we have discussed, we have a shared commitment to ensure that the arrangements that are in place are effective and contribute to the work already in hand to promote an inclusive and respectful culture across the Scottish Government. Your letter, in particular, asked me to consider as part of the review ways in which any concerns raised by staff about the conduct of current or former Ministers could be addressed. I have developed, for your agreement, a process for how complaints of harassment, including sexual harassment, might be taken forward. (The agreement is added to the end of this article). This new process aims to ensure that I am able to fulfill my duty of care to staff by taking the necessary steps to support the member of staff and to put in train any further action that might be required within the civil service as a result of the issues raised. As far as current Ministers are concerned, the process will also assist you in taking forward your responsibilities under the Scottish Ministerial Code. It also sets out how complaints against former Ministers will be handled. Given that the process engages the responsibility of the First Minister for the application of the Ministerial Code, we will seek approval for the ongoing application of the process on each occasion the Ministerial Code is updated. I should be grateful to learn if you are content to adopt the process set out in the annex. As you have requested, I am happy to update the Cabinet about the outcome of the review whenever you wish.
14 Dec: 0841. Richards emailed Private Secretary (2) to Evans, Hynd, Mackinnon, and the Head of Branch, Peoples Directorate the following: Policy on Complaints Against Ministers.
I’ve amended the letter and policy in line with our exchange. If this looks OK I’d like first for us to run this past the unions before the final exchange with FM. I think I would just share the part about current ministers because that is what would form part of our revised F@W policy. I think the former minister’s process is more for us to know what we would do rather than to have out there as a published policy. Although we would share it if asked. I copied in Head of Branch, People Directorate (1) and Judith because I’ll be on leave from close today. It would be good to get this tied up quickly. Head of Branch, People Directorate (1) – in preparation for sharing this with the unions could you abstract the current ministers part? cheers Nicky.
14 Dec: 1043. Hynd emailed Richards, Private Secretary 2, Mackinnon and, Head of Branch Peoples Directorate 1 the following. Policy on Complaints Against Ministers. Thanks for this. Some formatting wrinkles had crept in which I have now sorted in the attached version (‘final’). Other than the removal of references to ‘sexual’, the text remains the same as that which went to the First Minister and on which she commented.
14 Dec: 1120. Private Secretary 2 to Evans emailed Hynd, Richards, MacKinnon, and Head of Branch, Peoples Directorate 1 the following. (Policy on Complaints Against Ministers). I’ve just spoken with Hynd about another few small adjustments – just to ensure using consistent terms throughout. Nothing substantive. Hynd is kindly making those adjustments and will circulate the final version shortly so Head of Branch, People Directorate 1 you may wish to hold off your preparation of the version for Unions meantime. In terms of timing to the First Minister, we will put the procedure to the First Minister once we have the green light from Richards. If we want to appraise the Permanent Secretary of timings and sharing with Unions, she is tied up in interviews today till 15:00 and then on leave until Tuesday – but contactable.
14 Dec: 11:32. Hynd emailed Private Secretary 2 to Evans, Richards, Mackinnon, and Head of Branch, People Directorate 1 the following. Policy on Complaints Against Ministers. Dear all. With sincere and deepest thanks to Private Secretary 2 to Evans, here is another ‘final’ version.
20 Dec: Copies of the revised procedures on handling harassment complaints about current or ex-ministers were sent to Somers and some other senior officers. The revised procedure was signed off later that day, by Nicola Sturgeon.
Events in 2018
16 and 24 Jan: The Scottish Government received two formal complaints of alleged misconduct by Alex Salmond at Bute House in 2013 during his time as First Minister. The complaints came from two separate individuals.
Afternote: Outside observers conjectured that the complainants had been waiting for the revised rules to take effect so that they would be protected from exposure and no matter the outcome of any subsequent investigation, the political damage to the SNP government would be significant at a time when a new Scottish Independence Referendum was being mooted.
Jan: The Scottish Government launched a probe into the conduct of Alex Salmond, headed by MacKinnon, who had been appointed to the role of “Investigating Officer” by Richards.
Afternote: The action of Richards contravened long-standing misconduct regulations which state that the subject officer must receive immediate formal notification of any misconduct allegation once it has been determined that an investigation is required and an investigator has been appointed but before the start of an investigation so that the subject officer can be provided with an opportunity to address it if it is their wish and the decision to appoint an “investigating officer” should not have been instructed by Richards on her own!!!! But did she?
Afternote: Evans, who led the Alex Salmond sexual misconduct investigation told the inquiry it would have been “inappropriate” for her to know the identities of the two female complainants before the investigations were complete. Yet Richards, in her evidence, said that Permanent Secretary Evans met Miss A and Miss B and discussed their complaints in the context of the newly expanded complaints procedure which meant former ministers and MSPs could now be investigated for misconduct. Evans also explained her consideration of the initial investigation report and informed both complainants of her decision and what this meant in terms of the next steps in the procedure.
06 Mar: Lloyd and Geoff Aberdein, (who served as Alex Salmond’s chief of staff during his time in office) met at the request of Lloyd. This was an informal discussion between friends and any reference to Alex Salmond in that discussion was in the context of media inquiries made around the time.
26 Mar: Lloyd and Aberdein met again at the request of Lloyd, during which she said she suspected the Scottish Government had received an official complaint about Alex Salmond. She did not know the full details of any potential complaint and had not alerted the First Minister to her suspicions about a potential complaint.
Mar: Alex Salmond was formally notified of the nature of the complaints that had been made against him and that an on-going probe had been underway for some months.
29 Mar: Geoff Aberdein testified under oath in the Salmond trial that he was contacted in mid-March by phone by Nicola Sturgeon’s office to discuss historic allegations against Alex Salmond, and was asked to a meeting with the First Minister on 29 March. Aberdein testified he was so concerned that he arranged a conference call with Kevin Pringle and Duncan Hamilton QC to discuss this.
Nicola Sturgeons version of the truth: On 29 March 2018 I met with Geoff Aberdein in my office at Holyrood. Aberdein was in Parliament to see a former colleague and while there came to see me. I had forgotten that this encounter had taken place until I was reminded of it in, I think, late January/early February 2019. For context, I think the meeting took place not long after the weekly session of FMQs and in the midst of a busy day in which I would have been dealing with a multitude of other matters. However, from what I recall, the discussion covered the fact that Alex Salmond wanted to see me urgently about a serious matter, and I think it did cover the suggestion that the matter might relate to allegations of a sexual nature. Around this time, I had been made aware separately of a request from Mr Aberdein for me to meet with Alex Salmond.
These two stories are utterly incompatible. Unless we are to believe that Nicola’s office set up a meeting for her without her permission, without telling her the subject, and without subsequently telling her they had set it up. We would also have to believe that Nicola’s private office knew of the allegations for weeks without telling their boss. I can tell you for certain, that is not how the Civil Service works.
The matter is capable of proof. Geoff Aberdein testified he held a conference call with Kevin Pringle and an eminent QC, Duncan Hamilton, ahead of the Sturgeon meeting. Presumably he would have informed Mr Hamilton of the genesis of the meeting to explain why he needed advice. Let the Fabiani inquiry call both Aberdein and Hamilton to give testimony.
It is important to note that if Aberdein is telling the truth then Nicola Sturgeon’s private office was phoning him about allegations about Salmond weeks before Nicola Sturgeon subsequently claimed to parliament that she first heard anything of all this. Of course, they could have known many months or years before that, but the Aberdein testimony gives us mid-March 2018.
The meeting was also a breach of protocol since the Ministerial Code expressly forbids the conduct of political party business within the Holyrood premises
21 Jan 2021 – Follow up:
Four independent witnesses have testified to Sky News (One of them a QC), that senior member of Sturgeon’s staff asked Aberdein to falsify a statement to remove their prior knowledge of the allegations against Salmond. Yet all of this, the most important evidence of the entire inquiry, has been excluded from publication and from consideration by the committee because it involves inextricably one of the anonymous accusers.
02 Apr: Sturgeon stated that her husband Peter Murrell, Party Chief Executive and her top government aide Lloyd were present at their home in Glasgow together with Alex Salmond, Geoff Aberdein, (who had arranged the meeting at the request of Lloyd), and Alex Salmond’s Solicitor, Duncan Hamilton. The foregoing persons left the room allowing Sturgeon and Alex Salmond to meet in private. Sturgeon claimed that was when Alex Salmond first revealed that he was being probed over harassment claims and expressed to her his concerns about the process of investigations against him. He also briefed her about proposals he had submitted to the Scottish Government for mediation and arbitration.
Afternote 1: Murrell, who had not been invited to attend said he arrived home during a “government business” meeting. Although he had a “sense” it was about something serious he did not ask and Sturgeon did not reveal that Alex Salmond was facing sexual harassment allegations. Adding she was immensely busy and they did not discuss her duties as the First Minister. But she had convened the meeting in her capacity as Party leader and as such Murrell should have been briefed. Somers, Sturgeon’s principal private secretary, said that if it had been an official meeting in her role as First Minister, it would have been in her ministerial diary and minuted. But it was not. The veracity of the account is questionable.
Afternote 2: Interviewed on 18 Aug 2020 by the inquiry team Evans said Sturgeon had been first alerted to Alex Salmond’s’ behavior in Nov 2017 when she learned that Sky News was investigating an “incident ” at Edinburgh Airport.
23 Apr: Sturgeon and Salmond had a “substantive” phone discussion. During which he asked if she would speak to Leslie Evans about “mediation” with the applicants. A special adviser was in the room at the time.
6 Jun: Sturgeon wrote to Evans to inform her that she has had talks with Alex Salmond.
07 Jun: Sturgeon and Alex Salmond met again, in Aberdeen, ahead of the Scottish National Party conference.
14 Jul: Nicola Sturgeon met with Alex Salmond at her home. Her husband Murrell was present but he said he spent most of the time in the kitchen so he wouldn’t be involved.
18th Jul: Sturgeon and Alex Salmond engaged in a telephone conversation. Sturgeon said that “at this point” she was “concerned – as the Party leader and from a perspective of preparing her Party for a potential public issue – that his handling of the matter meant that it was likely to become public in the near future.”
Afternote: Paragraph 12 of the “new” procedure explicitly excludes the involvement or interference of the First Minister in any part of the investigation and the three meetings and two telephone conversations Nicola Sturgeon had with Alex Salmond after the start of the investigation and before its conclusion would be construed as interference.
Afternote 2: Sturgeons letter to the inquiry is here: Nicola_Sturgeon it provides details of correspondence between herself and Alex Salmond. If she had only accepted his advice and allowed an arbitration process to be completed things would have turned out very differently.
22 Aug: Evans informed Alex Salmond that there was no scope for mediation and arbitration and that she was “considering the public interest” before publishing the results of the investigation.
23 Aug: Alex Salmond immediately launched proceedings seeking imposition of an interim interdict on the Scottish Government preventing the release of any information pertaining to the allegations or investigation so that he would be able to request a judicial review of the decision process which he said was an “unjust” and “unlawful” investigation procedure conducted with malice aforethought since his efforts at “conciliation, mediation and legal arbitration” had been “rejected”.
23 Aug: Details of the charges of sexual harassment against Alex Salmond were illegally released to journalist David Clegg, a writer for the Daily Record. The spoiler was designed to pre-empt the imminent issue of an interim interdict preventing any disclosure of any matter pertaining to the investigation. Clegg passed the information to the Editor of the Daily Record who immediately published an “exclusive” report. Alex Salmond wrote to Evans demanding an inquiry into how details of the complaint against him were leaked to the media.
Afternote 1: 25 Mar 2020: The Information Commissioner’s Office (ICO) found no evidence of civil servants or ministers breaching rules around the former SNP leader’s personal data after he raised concerns about how the allegations against him first appeared in the Daily Record.
Afternote 2: The timing of the leak is crucial. We know from material given to the Holyrood inquiry that Alex Salmond’s lawyers had repeatedly told the Scottish Government that their investigation into the allegations was unlawful and that the matter should instead be dealt with privately by arbitration and/or mediation. The Scottish Government had flatly refused these suggestions and insisted on going to court where the allegations would have become public – right up until the eve of the hearing, when it suddenly conceded, at a cost of hundreds of thousands of pounds to the taxpayer. It has steadfastly resisted disclosing its legal advice on the subject. But one of the things known is that Salmond was about to seek, on the morning of 24 August 2018, to have an interim interdict issued by the Court Of Session which would have prevented the Scottish Government from issuing any statement naming Salmond. The Scottish Government was informed of that fact at 5pm on the 23rd. Within three hours of that notification, Davie Clegg had the whole story and posted this to his Twitter account: “The dam broke on this when I put some of the allegations to Salmond at 8pm tonight and informed him we were planning to publish in tomorrow’s Daily Record. Salmond responded at 9.30pm with his statement on the legal action. This was then sent to other newspapers as a spoiler.” So where could it have come from? At this stage, very few people would have known in any major detail about the investigation. They included the two complainers, the First Minister herself, Permanent Secretary Leslie Evans, investigating officer Judith MacKinnon, civil servant Barbara Allison, and finally, the First Minister’s chief of staff Liz Lloyd, who since March 2018 had been a central liaison between Nicola Sturgeon and Salmond’s representative and former chief of staff Geoff Aberdein. If we rule out Salmond and Aberdein that’s just seven people (along with a very small handful of other civil-service mandarins who’ve got no axe to grind). Do any of them, we wonder, have any notable connection to or relationship with Davie Clegg? Hmm, what’s this? Mandy Rhodes, Editor of the Holyrood magazine, posted this to her Twitter account on 11 Jul 2016. Hoi! David Clegg. When did you become a rising young leader?
Front row, from left to right: Kezia Dugdale, Liz Lloyd, Jenny Gilruth, Ross Thomson, and Davie Clegg.
Now, we of course have to emphasize that none of the above demonstrates any sort of wrongdoing by anyone. It’s just a happy bunch of good pals enjoying a
free glamorous summer holiday serious and important fact-finding trip like anyone would. Cost to the US £8,000 for each person. It most certainly doesn’t prove that Liz Lloyd – one of the vanishingly small number of people who knew the details of the Salmond investigation at that point – leaked them to Davie Clegg hours before a court interdict, to make sure that they got into the public eye and enabled the press to luridly smear and monster Salmond on the basis of false allegations for months before he could prove his innocence, conveniently serving the interests of both the newspapers and the Scottish Government. We’re equally sure that there’s nothing sinister in the US government being so nice to so many SNP figures, and that they want nothing in return. See the rest of the article here: (https://wingsoverscotland.com/all-the-jolly-boys-and-girls/#more-120497)
29 Aug: Alex Salmond resigned from the SNP stating he wanted to avoid internal division within the Party.
14 Sep: Police confirmed they had launched a formal probe into the women’s allegations.
25 Oct: Sturgeon, Evans Lloyd, and other names redacted, persons met to discuss matters arising from recent events.
02 Nov: Sturgeon, Evans Lloyd, and other names redacted persons met to discuss matters arising from recent events.
13 Nov: Sturgeon, Evans Lloyd, and other names redacted persons met to discuss matters arising from recent events.
14 Dec: Alex Salmond won a legal bid forcing the Scottish Government to hand over documents related to the case against him.
23 Dec 2020: Belated judicial Review report provided to the Inquiry
With precisely the grim level of cynicism we’ve now come to expect as standard, the Scottish Government released a key document relating to the Salmond inquiry two days before Christmas. It contains legal advice relating to the judicial review brought by Salmond regarding the Scottish Government’s investigations into false allegations of misconduct against him,. It is extremely heavily redacted. But a few interesting passages remain. The document, dated 28 December 2018, is a report from Sarah Davidson, the then-Director General of Organisational Development and Operations, one of those vague job titles that covers a multitude of sins.
It is, officially, the document which advised the Scottish Government to concede the case, on which it had by that point already spent an amount of money it refuses to reveal to the Scottish public – but which can be reasonably estimated at upwards of half a million pounds, given that we know Alex Salmond had spent a similar sum by then on his side of the argument.
29 Dec: Judicial Review: Report compiled by: Sarah Davidson: DG Organisational Development and Operations
1. You asked me to coordinate the provision of urgent advice in order to allow you to consider how to proceed in relation to the Judicial Review which is set down to commence before Lord Pentland in the Court of Session on January 15th. In doing so, I have drawn heavily on contributions from the Chief Financial Officer, and from the Director of Communications, Facilities and Ministerial Support. I am grateful to them all for responding so promptly to this request.
2. As you are aware, Counsel has offered advice on a number of occasions in relation to the prospects of the Scottish (SG ) arguments prevailing in court. This advice has principally turned on counsels views on the appointment and actions of the Investigating Officer. The full chronology and summaries of that advice are set out at Annex A.
3. The key point to note is the “watershed moment” of last Friday (21st December 2018), at which point the SG’s case became , unstateable, (1) given what emerged that day about the degree and nature of the contact between the IO and the prospective complainers prior to their formal complaints having been made. This information was contained in documents which were identified and produced for the Commission and Diligence Hearing last week, and had not been elicited by previous
document searches. While there is no reason to believe that the IO was motivated by anything other than her desire to fulfil her role properly, we recognise that her actions give rise to a perception that there was an unfairness in the operation of the procedure in this case.
Note 1: What it’s claiming – and readers can make their own judgement about how believable a claim this is – is that the Scottish Government’s extremely expensive legal counsel only found out a few days before they were due to go to court that Judith Mackinnon had had extensive contact with the two complainers prior to being appointed as the Investigating Officer.
(The two QCs acting for the Scottish Government were Christine O’Neill as “junior” counsel, and Roddy Dunlop as senior, two of the country’s most eminent advocates. Alert readers may recall Dunlop from his successful work on two high-profile cases of recent years, on behalf of Alistair Carmichael and Kezia Dugdale.)
So it’s interesting to ponder what’s missing. (We don’t actually know how long any of the redactions are, because they’ve all been replaced with “[Redacted]” rather than blacked out. They could be a single word or a dozen paragraphs.)
The most obvious thing would be a word like “frankly”, but why would anyone want to redact that? Similarly there’s no conceivable reason to redact something like “in the opinion of counsel”, and it’s very difficult to plausibly add anything to that sentence which might identify anyone whose identity is being kept secret.
The only reason to blank out something there is if it’s in some way incriminating, such as – and we emphasise this is pure illustrative speculation on our part – “contrary to what counsel had been led to believe by the Scottish Government”.
It’s perhaps worth mentioning in passing that the word “unstat[e]able” is one with a very particular meaning for anyone practicing law. What it basically means is that if you deliberately conceal evidence or misrepresent something about the case to the court, or allow your client to, you’ll be struck off.
4. Counsel has said in terms that there was nothing about the way in which havers gave evidence to the Commission that would suggest that they were acting in bad faith in relation to the production of information, but it is clear that the process of searching for and producing relevant documentation under the duty of candour has not been systematic and comprehensive. (2) It is for this reason that the full picture of and the risk of the perceptions that these could give rise to, only became visible to Counsel and to SGLD at the end of last week.
Note 2: Now, there’s nothing actually redacted in the paragraph above, but there’s certainly something missing from it. Who, a casual reader might wonder, has been failing to be adequately “systematic and comprehensive” in terms of their “duty of candour” to properly inform the legal counsel the Scottish Government is shovelling your money at? Who was in charge of this process? Who designed it and who was carrying it out?
Conceding the petition
6. If a decision is taken to concede the petition, the process would involve a Counsel to Counsel discussion of settlement, with a view to agreeing a Joint Minute setting out the basis of conceding and appropriate declarators (making clear what is and is not the basis of the
concession), and agreeing expenses. In parallel, the Court would be advised of decision not to proceed with our defence on the basis that there were ongoing discussions about disposal.
7. In such circumstances, the decision which was being Judicially Reviewed would be set aside and referred back to the decision maker. In this case, for a range of reasons (not least the views of the complainers about going through the process again), consideration needs to be given to whether the SG could restart and re-run the procedure and ensure fairness. The Petitioner may look for assurances that this will not happen, but it is premature to decide or indicate whether and how this would happen, and the views of the complainers would of course be something you would want to take into account.
8. The Petition contains a number of pleas-in-law, most of which SG would not be conceding.
9. While we will be simply indicating a decision to concede when announced, the terms of disposal by the Court will be adjusted by counsel in the days ahead (in a Joint Minute) and we will seek to narrow the terms to the minimum of conceding that the decision cannot legally stand and is set aside and, as above, the pleas-in-law which the court will uphold in doing so. We would not be negotiating in any way about future decisions. If the Joint Minute cannot be agreed, the court will itself make an Order to the same effect.
10. In handling terms, once a decision has been taken it would be beneficial to intimate the concession as soon as practicably possible following the events of last week: it would be essential for the Court to be told at the same time as the Pentland next week. This would be easier on Monday or Thursday when the Court is open, but might still be possible, although less straightforward, on Tuesday or Wednesday when the Court is closed. The Court would not look favourably on any
public statement being made before Lord Pentland was advised of the position.
Implications of conceding
11. Clearly, conceding the petition gives rise to a new set of issues and risks which would require to be managed. The immediate practical implications are dealt with in the section below on communications and handling.
12. It is impossible of course to be certain how the Petitioner will react, although we can certainly speculate about how he may seek to portray the concession in public statements. The only limitation in practice on what information he may deploy in the public domain are the reporting restrictions on naming the complainers. It is less easy to imagine what, if any, legal remedies he might pursue and there are limits to the value at this stage of second-guessing how he will respond, on what grounds, or with what prospects of success. These issues are of course not germane to the decision on how to proceed.
13. In reaching a decision in relation to these proceedings, you will also want to have regard to your duties as Principal Accountable Officer. The overall Accountable Officer test addresses the four key considerations of regularity, propriety, value for money and feasibility. You will be familiar with these of course, but the application of each as they might apply in current circumstances is summarised at Annex B.
14. In considering the PAO tests, you will wish to take account, in particular, of both the costs to date and further projected costs that might be necessary to continue to defend the action to its conclusion. You will also wish to give consideration to the possibility of having to meet even greater opposing counsel costs should you decide not to concede now and the Petitioner is ultimately successful in both his petition and recouping his costs.
Communications and handling
15. As noted above, in the event of a decision being taken to concede the petition, there are strong arguments for moving to confirm this quickly. In order to allow you reasonable time to consider this advice, we are using Thursday 3rd January as a central planning assumption, but can of course update this if required. Further detailed handling advice including a draft statement has therefore been developed
In considering the PAO tests, you will wish to take account, in particular, of both the costs to date and further projected costs that might be necessary to continue to defend the action to its conclusion. You will also wish to give consideration to the possibility of having to meet even greater opposing counsel costs should you decide not to concede now and the Petitioner is ultimately successful in both his petition and recouping his costs.
16. Although not within the scope of this advice, there are clearly a number of lessons to be learned by the organisation and we can discuss in due course how best to ensure that this is done.
17. Subject to decisions taken and further refinement, an SG statement might therefore read along the following lines, (subject to agreement by the Lord Advocate): investigated is robust, fair and necessary and that it would have been found to be so had it been tested by the Court. However, we acknowledge that the operational application of the procedure may have fallen short. We have therefore [today] informed the court and the petitioner that we have decided to concede the Petition on this basis. We will consider and decide on our next steps in the light of this decision.
18. We are also mindful of our duty of care obligations to the complainers and to other members of staff who would be affected by the concession and its aftermath in different ways. This will include our next steps in relation to the complaints raised by Ms A and Ms B which still, of course, sit with us for determination. Work is being undertaken to identify all those who would require to be informed about a decision
to concede and the support that might be offered to them. We can discuss this with you when convenient.
19. Having reviewed the material contained in this note, you may conclude that the Scottish Government is in a position where the only sensible and defensible action is to concede the petition and to plan for managing the attendant reputation and legal risks. The risks associated with proceeding to defend the Judicial Review could appear to be greater.
20. I hope that this advice provides you with the necessary basis on which a formal decision to concede on the terms set out in paragraph 8 above can be reached.
21. Colleagues and I stand ready to discuss any aspect of this note.
Copy to: Ken Thomson, DG Constitution and External Affairs
Director of Legal Services
Chief Financial Officer
Director, Communications, Facilities and Ministerial Support
Annex A Salmond v Scottish Ministers and Permanent Secretary
This summary sets out the development of advice from counsel, in relation to the following two issues1) Whether paragraph 10 of the Procedure requiring the IO to have had no prior of the IO, though not a member of SG staff in 2013, indicate that she was involved in discussions of any nature around the time of the complaints being made and the IO being appointed (issue 1)
2) Whether, if issue 1 is answered in the negative, the actual acting’s of the IO in her discussions with one or both complainers in the period from November 2017 to January 2018 created in the eyes of a reasonable, objective outsider an impression that of a real risk
(whether in fact correct or not) that there was an unacceptable possibility of bias in her role as an impartial gatherer of the facts a concept known as apparent bias (issue 2).
Annex B: PAO Considerations
When a course of action is it not immediately obvious, the need to make a difficult decision calls for judging risks, balancing competing objectives and dealing with uncertainty. It is the and weighing all the factors. Rather than rely on piecemeal advice, it is usually most helpful
to bring all the considerations which have been applied together in an overall Accountable Officer test that addresses the four key considerations:
Regularity: (of expenditure) The key test here is whether there are legal powers. Given this would have been flagged by SGLD at the outset if there was any doubt, unless anything associated with the types of expenditure being incurred has changed significantly, it is unlikely that the initial test applied here will now be in doubt as a consequence of the current status of the case.
Propriety: The key test here is whether expenditure falls within the boundary of what parliament for the use of taxpayers money. Just because expenditure is regular, does not automatically mean that it can be assumed to meet a propriety test too. Unlike the regularity test, it is possible for the propriety test to shift over time. Three specific areas are worthy of consideration here:
Expenditure must be sustainable, which includes whether sufficient public resources are available and are likely to continue to be available. Any doubt here calls into question whether further spending would meet the propriety test in the future.
If risks deemed acceptable to people, resources, assets etc. at the outset have escalated to the point whether they are no longer manageable or able to be sufficiently mitigated, again there is a question about whether the initial propriety test can continue to be met.
Finally, consideration must also be given to the reputation of the Civil Service or the Government itself where action that might initially have been considered within the bounds of acceptability might now result in unacceptable damage to that reputation, again the propriety test is in doubt.
Value for money: This can often be a subjective test that can again shift over time, in particular if the costs shift beyond initial expectations. There is no identifiable point at which initially justifiable expenditure tips over to no longer being unjustifiable, even when the initial benefits associated with that spending remain constant (e.g. would a 10% increase be acceptable but a 20% not?). Where both costs escalate beyond initial estimates and the benefits associated with the action taken deteriorate to a level where they are questionable that should be a stark warning to the Accountable Officer that overall value for money may no longer be justified. It can often make sense to bring into account unquantifiable factors when considering benefits, in the value for money assessment, as is likely to be the case here, in particular the impact on reputation and behaviours of either action or
inaction. Accountable Officers are always urged to treat these factors with caution and when they are in play there is usually, as noted above, resonance with propriety.
Feasibility: This test is normally reserved for governments ability to practically deliver on its initially intended course, but there is some relevance here too. In particular, whether that intended course can continue to be carried out both effectively and credibly and is likely to be successful in securing its initially intended result at reasonable cost. Where either or both are in doubt, again there is a risk to whether this test can continue to be met. It is worth noting that there are clear
overlaps with value for money and/or propriety here. These four tests must be taken and considered together and the overall judgement is
whether the Accountable Officer can confidently defend spending (or further spending) as a satisfactory use of public resources and do so in a dispassionate fashion. It is also important to carry out this test periodically as circumstances change, rather than rely simply on the initial judgement, in particular if one or more of the four tests no longer complies with the standards expected and/or there is a material change that calls into doubt that initial assessment.
Annex C Judicial Review (Day One plus seven illustrative handling plan)
Day One Thursday, January 3
12noon. Communication between Counsel or SGLD and Levy and MacRae notifying SG position.
Immediate release of statement to Press Association. Immediate statement on SG website.
Immediate internal communications statement on Saltire.
Reactive media calls to be handled by News desk but nothing to issue before following process outlined below.
All calls to be logged by News desk no initial response given. 4pm – All calls to be taken in to central hub discussion attended by Communications SGLD and HR. This to ensure consistency across replies and due consideration given to consequences of responses.
All subsequent responses and to whom to be logged by News desk.
A previously cleared Q and A will be held by Communications upon which to draw for responses or to build on for responses.
Consideration to be given to movements of FM and Perm Sec on the day, as well as that of named key players who may also be approached by media. Support to be offered by Communications.
Bids Permanent Secretary not to undertake bids. Statement sets out position.
Duty Communications Officers on duty over the period will not handle calls on this matter. They will forward any calls directly to either or who will work shifts handling duty calls in the initial period.
Day Two Friday January 4
Consideration to be given to movements of FM and Perm Sec on the day, as well as that of named key players who may also be approached by media. Support to be offered by Communications.
Media monitoring pull together press cuts.
9am Meeting to consider media reaction, next steps.
12noon Communications meeting to consider lines
4pm Communications meeting to consider lines.
Duty to route any queries about the above to in the first instance
Day Three Saturday Jan 5
Consideration to be given to movements of FM and Perm Sec on the day, as well as that of named key players who may also be approached by media. Support to be offered by Communications.
10am Conference call to assess coverage and any next steps.
Duty to route any queries about the above to in the first instance.
Day Four Sunday Jan 6
10am Conference call to assess coverage and any next steps.
Duty to route any queries about the above to in the first instance.
Day Five Monday Jan 7
Consideration to be given to movements of FM and Permanent Secretary on the day, as well as that of named key players who may also be approached by media. Support to be offered by Communications.
9am Meeting in SAH to discuss coverage.
Mid-morning FM is in Perth to announce additional funding for Tay Cities. Media attendance will be considered in advance in discussion with FMPO and Spads on Thurs, Jan 3 or Fri Jan 4.
12noon Communications meeting to consider lines.
4pm Communications meeting to consider lines.
Day Six Tuesday Jan 8
Media monitoring pull together press cuts.
9am Meeting in SAH to discuss coverage.
12noon Communications meeting to consider lines.
4pm Communications meeting to consider lines. Duty to route any queries about the above to in the first instance
Day Seven Wednesday Jan 9
Consideration to be given to movements of FM and Permanent Secretary on the day, as well as that of named key players who may also be approached by media. Support to be offered by Communications.
Media monitoring pull together press cuts.
9am Meeting in SAH to discuss coverage
12noonCommunicationsmeeting to consider lines
4pm Communications meeting to consider lines.
Duty to route any queries about the above to in the first instance
Day Eight Thursday, January 10
Meeting to consider lines. Duty to route any queries about the above to in the first instance
Comment: on the report:
It may or may not be important to remember that in December 2018, when this report was produced, Salmond still hadn’t been charged by the police – that didn’t happen until the middle of January 2019.
Had the Scottish Government been advised in October that its prospective case in the judicial review was untenable, its last hope of avoiding either an embarrassingly comprehensive defeat or an almost equally embarrassing climbdown would have been if some other events had overtaken the judicial review and caused it to be shelved. Events such as, purely illustratively, a criminal prosecution.
Was the Scottish Government advised to concede the case in October 2018, but kept stalling and spending money in the hope of dragging it out until a criminal prosecution took the judicial review off the table entirely? This document doesn’t tell us.
But such a strategy would presumably have been quite poorly received by its legal advisers, whose hard-won reputations would be at stake if they were asked to present such a laughable case in front of a senior judge like Lord Pentland.
(And we know it was a laughable case because Alex Salmond was awarded costs on the almost unprecedented punitive “agent and client” basis, reflecting the court’s anger at having its time wasted.)
Does anything in the document tell us how counsel felt?
The short, innocuous-looking paragraph above is in fact probably the most explosive unredacted revelation in the whole document. Because what it says is that the Scottish Government’s legal counsel had given it an ultimatum – “concede this case or we quit”.
Such a step is almost unheard of. For a pair of QCs to walk away from a client rather than be humiliated (or worse) in court would be an event of earthquake proportions – especially when that client was a government.
And yet here it is, in unredacted black and white. The Scottish Government’s counsel could no longer endure the case they were being asked to present in court, and was forced to deliver a threat to its own client.
(Dunlop was perhaps already rather stung after having had to repeatedly and painfully apologise to the court because he’d been misinformed by his employers.)
And yet we’re expected to believe that these learned people, charging hundreds or thousands of pounds an hour, had been strung along at public expense for months on end without being told absolutely key facts, which were known to everyone else and their dog who was involved.
It’s not hard to see why this document was released two days before Christmas. But as we say, we’re only guessing about what all the bits we’re not allowed to see could contain. So perhaps, as a light-hearted festive parlour game, readers could offer some more innocent explanations in the comments below. (Wings over Scotland)
Events in 2019
03 Jan: The Alex Salmond legal team advised the court of their intention to call civil servants to give evidence under oath. An out of court discussion took place between the two legal teams about an evidence session planned for 07 Jan in the course of which civil servants reporting direct to Sturgeon would be required to give evidence to the court under oath. Later that day the Scottish Government conceded.
08 Jan: The Scottish Government defense team admitted at court that there had been a significant level of inappropriate direct personal contact between Mackinnon and the complainants and that this had resulted in procedural errors being incurred and that the process of soliciting the complaints from two women “bordered on an encouragement by Mackinnon, to proceed with formal complaints against Alex Salmond.” In his final statement, the Judge rebuked the Government and instructed that the matter should be considered closed. Costs of the proceedings (possibly around £500K) were charged to the government.
Evans later admitted the government’s handling of the investigation had been unlawful and had the appearance of bias because it was led by a senior personnel official, Mackinnon, who had had prior contact with both complainants.
Afternote: 15 Sep 2020: Answering a question Allison denied Evans had sent her an email message “We may have lost the battle, but we will win the war.” not long after Alex Salmond had won the judicial review. She later corrected the record in a letter she wrote to the Inquiry Committee saying:
“I answered to the best of my recollection, which was that I had not received the message. The message in question was dated over 18 months previous, and I was on holiday at the time at which it would have been sent. “However, the committee did not seem satisfied with my response and I wrote to the Committee on 21 September advising that I would ask for a further search for this message to be carried out. I asked the Crown Office and Procurator Fiscal’s Service to provide me with a copy of the material which they retrieved from my mobile phone in the context of the criminal trial. I received that material on 23 October. That material confirms that I did indeed receive the message. I would like to take the opportunity to correct the unintended inaccuracy in my previous statement. I received this message on 8 January 2019 “Thanks, Barbara – battle may be lost but not the war. Hope you are having a lovely & well-deserved break. L.” I sent a reply on the same date. “Thanks Leslie. It is lovely here. My mind and thoughts are with you all there tho. Best wishes. Bx.” Allison went on to admit that she had retained messages on her phone relating to the investigation from 2017 but could not say why she had deleted the text from Evans.
Police Scotland stated that the allegations had been referred to them by Evans representing the Scottish Government and an inquiry, as to whether there was criminality involved on Alex Salmond’s part, led by DCS Lesley Boal, given the title Operation Diem, had commenced in Sep 2018. It is not yet known if and when the inquiry will end.
15 Jan: David Clegg: Inside track of how Salmond v Sturgeon row created a political earthquake for the SNP
Sturgeon is being investigated by ethics watchdogs over a series of meetings she held with Alex Salmond while he was the subject of a Scottish Government investigation into sexual harassment claims. The initial meeting was brokered by Sturgeon’s chief of staff Lloyd and Salmond’s former chief of staff Geoff Aberdein. When Lloyd and Aberdein met for coffee on 06 Mar 2018, it was officially a catch-up between two old friends. The pair had worked closely together for seven years as key cogs in the SNP machine that brought Scotland to the brink of independence. But their discussion that afternoon started a chain of events that led to an official standards probe into Scotland’s First Minister, calls for a full parliamentary inquiry and sparked a poisonous civil war at the heart of the SNP.
Aberdein served as chief of staff during Alex Salmond’s time as the first minister, while Lloyd held a variety of senior positions in communications and policy development. When Salmond resigned following defeat in the independence referendum of Sep 2014, Aberdein departed for the private sector and Lloyd took over as Sturgeon’s chief of staff.
But internal party dynamics soured dramatically in the years that followed. By the time of that coffee on 6 Mar, Sturgeon and Salmond – once the closest of political allies – were barely on speaking terms. Salmond’s unpredictable and unhelpful behaviour after resigning office had infuriated Sturgeon. The problem only got worse after he lost his Westminster seat in the June 2017 snap general election. Salmond blamed Sturgeon’s underwhelming campaign for his defeat. Sturgeon was also left embarrassed by risque jokes Salmond made during his Edinburgh fringe show. But the final straw was Salmond’s decision to launch a talk show on Kremlin-backed TV station RT, without consulting Sturgeon.
Meanwhile, the Harvey Weinstein allegations were dominating the international news agenda and Scottish media outlets were beginning to investigate long-standing rumors about Salmond’s conduct with women. This appears to have been the crux of a misunderstanding between the two camps that poisoned relations even further. During the 06 Mar meeting, Lloyd told Aberdein she hoped there was no basis in rumors Salmond was plotting a political comeback. She suggested this would be very difficult given his status on RT. Crucially, she also made reference to the sexual misconduct claims.
We understand Aberdein reported Lloyd’s comments to Salmond. Shortly afterward, Salmond was informed about the Government investigation into claims of sexual misconduct dating back to his time as the first minister and assumed this is what Lloyd had been referring to in the meeting with Aberdein. Lloyd insists she had no knowledge of the Government probe at that stage and was instead referring to questions the press office had been fielding.
What happened next will form the basis of the standards probe being carried out into Sturgeon’s handling of the claims. A meeting between Sturgeon and Salmond was set up via Lloyd and Aberdein. It took place on 02 Apr 2018 in Sturgeon’s Glasgow home. Aberdein and former SNP MSP Duncan Hamilton were there but did not sit in on the meeting. Sturgeon says the first they heard of the Government probe was when Salmond revealed the details. But opponents have criticized Sturgeon’s decision to meet Salmond on two further occasions and take two calls with him despite knowing he was under investigation.
These contacts will be assessed by the independent advisers to the ministerial code of conduct. There are also questions about what Salmond asked of Sturgeon during those meetings and calls. Meanwhile, a separate police investigation into the allegations continued. Whatever the outcome, the saga has caused an irreparable rift between Salmond and Sturgeon that threatens to divide the wider independence movement.
25 Jan: Peter Murrell, Chief Executive of the SNP and husband of Sturgeon is an active user of internet social media and exchanging information and views with a group of “WhatsApp” friends. In a message sent on 25 January 2019, the day after Alex Salmond was first charged with multiple sexual assaults, he posted two messages:
(1): “Totally agree folk should be asking the police questions a report is now with the Procurator Fiscal on charges leaving the police twiddling their thumbs. So it would be a good time to be pressurizing them. Would also be good to know that the Metropolitan Police are looking into events in London.”
(2): To be honest the more fronts Salmond is having to fire-fight on the better for all complainers. So Crown Prosecution Service action would be a good thing.”
Afternote: Following his acquittal of all charges Alex Salmond claimed that there had been an internally led SNP conspiracy against him. These messages from the Chief Executive Officer of the Party give credence to the claims.
Murrell also claimed to know nothing of the content of discussions at two meetings between Sturgeon and Alex Salmond about the alleged assaults despite them being held in his home in Glasgow. He insisted Sturgeon had told him she could not discuss the details of the meetings but they were held to discuss SNP business and as such he had every right to know what was going on. His account does not ring true.
In recent months there has been growing unrest within the Party about the conduct of the small cliche at its head who have been actively changing internal rules to prevent Sturgeon’s critics from being selected ahead of the 2021 Scottish General Election. But the behavior backfired when elections to the NEC returned a majority of new officers who are not in support of the Sturgeon Murrell agenda. It appears that Peter Murrel will be subjected to a vote of no confidence very soon.
May: Lloyd promoted by Sturgeon from Band 3 – with a maximum salary of £84,000 – up two levels to Band 4, increasing her salary by 25%, from £83,000 to £104,000 a staggering £21,000 increase. A reward for blind loyalty?
Events in 2020
04 Aug: Nicola Sturgeon provided a statement to the inquiry. This is attached, in full. It reads:
I refer to your letter of 7 July. Please treat this covering reply and attached annexes as my response to the questions posed in your letter.
With regard to paragraph 5 of Annex B of your letter, noting that “the Committee and all participants must comply with the court order made by the Lord Justice Clerk, Lady Dorrian, on 10 March 2020”, I have excluded from this letter any information that, as far as I am aware, might disclose the identity of any of the complainers in HMA v AEA Salmond.
However, I do not know if my submission would pose a risk in ways I am not aware of, or if other evidence submitted would risk jigsaw identification.
Therefore, prior to publication of all or part of this submission, I would like assurance on the steps the Committee has taken to ensure that nothing in it, either on its own or taken together with anyone else’s evidence, would risk identification.
The Committee previously asked me to retain all information relevant to the Inquiry. I enclose at Annex B a transcript of WhatsApp messages between myself and Alex Salmond.
This is the only information I hold relevant to the Committee’s Inquiry. I have no objection, as regards my own interests, to the publication of these messages in full.
However, I seek an assurance from the Committee that any issues relating to Alex Salmond’s data rights or legal privilege will be properly considered before publication, including whether his consent is required.
Subject to the above, I will be happy to discuss any aspect of my response with the Committee in an oral session. I have structured my response in line with your paragraph headings.
Please note that any and all involvement I had in my capacity as First Minister in the Complaints Policy Development, Complaints Handling Procedure and Judicial Review – and any relevant documentation in respect thereof – will be included in the Scottish Government’s submissions to the Committee.
The information I provide in this response relates to my actions in a party/personal capacity. This includes my decision to advise the Permanent Secretary of information I acquired in my party/ personal capacity, where I considered that the interests of the Scottish Government required it.
I refer in this submission to the letter I wrote to the Permanent Secretary on 6 June 2018. A copy of this should be requested from the Scottish Government.
COMPLAINTS POLICY DEVELOPMENT
As a personal reflection and for context, the development of the Scottish Government’s “Handling of harassment complaints involving current or former Ministers” (hereinafter referred to as “the Procedure”) took place against the backdrop of the #MeToo movement, which started in late 2017 in the wake of allegations extending back over several years about certain high profile individuals.
The concerns being expressed globally at that time were that too many organizations did not have procedures in place that allowed allegations of sexual harassment to be raised or properly investigated; that women’s voices were often not heard or listened to; that organizations too often closed ranks in defense of men accused of inappropriate behaviour; and that it could be particularly difficult for ‘historic’ allegations to be raised.
The media had also reported concerns about the prevailing culture in Holyrood. The Scottish Government was just one of many organizations across the globe confronted with these questions at that time, and considering its procedures and culture in light of them.
You will also recall that a Scottish Government minister resigned in early November 2017 over concerns about sexually inappropriate conduct.
As First Minister, I wanted to ensure that the Scottish Government had robust procedures in place to allow any concerns or complaints by those in its employment to be properly and fairly considered, without fear or favour and regardless of the seniority or political affiliation of any individuals who might be the subject of such concerns or complaints.
My role as First Minister in the development of the Procedure will be set out in the Scottish Government’s submission to the Committee. Any involvement in my role as First Minister will be included in the Scottish Government submission on the handling of the complaints. I provide further information on a personal/party capacity in Annex A.
The detail of my involvement in decisions associated with the Judicial Review will be set out in the Scottish Government’s submission to the Committee.
The Committee is aware that I have made a self-referral to the independent panel of advisers on the Ministerial Code. However, I address the requests in this section in Annex A to this letter. Annex B includes communications in the form of WhatsApp messages between me and Alex Salmond. My letter to the Permanent Secretary dated 6 June 2018 should be requested from the Scottish Government.
PARTY POLITICAL MATTERS
I had no communication with the SNP relevant to the subject matter of the Committee’s inquiry, other than approving the party’s public comments after the matter became public in August 2018.
My husband was obviously aware of Alex Salmond’s presence in our home on 2 April and 14 July 2018, but he was not present at the meetings and I did not share the detail with him.
As I outline in Annex A, when I agreed to meet with Alex Salmond on 2 April 2018, I believed that what he was about to tell me may require a public response from the SNP. Indeed, I suspected that he may be about to resign from the SNP. In the event, it was clear to me at the 2 April meeting that his approach to handling the matter was not likely to result in it becoming public at that stage.
Accordingly, there was nothing for me to alert the SNP to, and it was not appropriate for me to disclose the fact or detail of the complaints and investigation under the Procedure. In relation to ensuring that there is a clear distinction between my role as First Minister and my role in the SNP, I have regard to the terms of both the MSP and Ministerial Codes of Conduct.
My Special Advisers abide by the terms of the Special Advisers’ Code of Conduct and the Civil Service Code. In relation to the question about Scottish Government communication and records, this is covered by Scottish Government procedures on the recording and retention of information.
The SNP communicates with its post holders in normal ways – including meetings, emails, and phone calls. The safeguard to ensure this is distinct from government communications is the relevant Codes that MSPs, Ministers, and Special Advisers are bound by. To be clear, members of the public often email my SNP or MSP accounts about government business, and I forward these to my ministerial private office.
On any other occasions when I email my ministerial private office or special advisers from my personal email – eg with diary queries or information requests – these will be to a Scottish Government email account and retained in line with standard procedures. And all government business, no matter the platform/medium it is conducted on/through, is subject to Freedom of Information legislation.
I had no general concerns at the time about Scottish Government culture from 2008- 14, and certainly not about sexual harassment. However, the government is a high-pressure environment.
Alex Salmond could be challenging to work for and, rightly, he demanded high standards. However, I was present on some occasions when tense situations had to be defused. Certain matters that I have become aware of through the events of the last couple of years raise – retrospectively – some other concerns. I have no general concerns about the culture of the Scottish Government now.
However, I am not complacent about the potential for instances of inappropriate behaviour within a large organization. That is why it is important to have clear and robust procedures in place which, subject to any views of this Committee on the Procedure, I believe to be the case. I have no comment to make on the adequacy of the Civil Service Code. I give some personal reflection on the Ministerial Code in Annex A – however, the adequacy of it is a matter the independent panel will be able to consider.
In conclusion, I would like to add the following personal reflections. The Committee will be considering the Scottish Government’s handling of complaints raised under the Procedure. That is, of course, legitimate. However, the Scottish Government would have had nothing to ‘handle’ had complaints not been raised about Alex Salmond’s conduct.
It was the concerns raised about his conduct – an aspect of which, by his own admission, he apologized for – that gave rise to this matter. In my view, when these complaints were raised, the Scottish Government had a duty to investigate them, and the fact that a mistake was made in the conduct of the investigation does not change that fact. To have swept them under the carpet because of who they related to would have been wrong.
As far as my personal involvement is concerned, over the last couple of years, I have faced accusations of ‘conspiring’ against Alex Salmond and also of ‘colluding’ with him. I reject in the strongest possible terms both of these suggestions. Indeed it seems to me that what some want to present as ‘conspiracy’ is in actual fact my refusal to ‘collude’ or ‘cover-up’.
In what was a very difficult situation – personally, politically, and professionally – I tried to do the right thing. Whether I always got it absolutely right is something I still reflect on, and the Committee will consider, but I sought all along to act in good faith and to strike the right balance of judgment given the difficult issues I was confronted with.
In the light of the #MeToo movement, I sought to ensure that the Scottish Government developed a process that allowed allegations of sexual harassment – including allegations of a historic nature – to be fully and fairly considered.
I did not do this because I had a concern (as set out in Annex A) that allegations about my predecessor could materialize. But nor did I, in any way, allow such concern to lead me to limit the scope of the procedure. I agreed to meet a friend of 30 years when I was told he was in distress and wanted to talk to me about a serious matter.
And it is certainly the case that I was anxious to prepare my Party as far as possible for an issue that, at different stages, I thought could be about to become public. However, I did not seek to prevent or influence the proper consideration of the complaints.
For the sake of the complainers, the Scottish Government, and indeed Alex Salmond himself, I acted in a way that I judged would best protect the independence and confidentiality of the investigation. However, when I became aware of a serious risk of legal action against my government, I felt I had a duty to make the Permanent Secretary aware of it.
My view throughout was that complaints must be properly and fairly considered, no matter who the subject of them might be, or how politically inconvenient the investigations may be.
And that remains my view, even though the circumstances and consequences of this particular investigation have caused me – and others, in many cases to an even greater extent – a great deal of personal anguish, and resulted in the breakdown of a relationship that had been very important to me, politically and personally, for most of my life. Lastly, since August 2018 I have taken care to say nothing that could compromise other proceedings, including the Committee’s inquiry – even though that has meant being unable to say more about my own actions or challenge misrepresentations about them. (Nicola Sturgeon 4 August 2020)
Afternote: According to her written statement provided to the inquiry and finally published last week, by the time drafting of the complaints procedure began in early November 2017, Nicola Sturgeon knew that allegations against Salmond were coming. She was, she says, told then about “allegations of sexual misconduct on the part of Alex Salmond”. She continues: “I spoke to Mr. Salmond about this allegation at the time. He denied it…” She was therefore well aware that the new complaints procedure being drafted then by her civil servants was likely to be dealing in due course with complaints against Salmond. Again, she says so in terms: “All of the circumstances surrounding this episode left me with a lingering concern that allegations about Mr. Salmond could materialize at some stage.” As a result, according to Sturgeon’s own account: “I sought to ensure that the Scottish Government developed a process that allowed allegations of sexual harassment – including allegations of a historic nature – to be fully and fairly considered.” She concludes: “I did not do this because I had a concern … that allegations about my predecessor could materialize. But nor did I, in any way, allow such concern to lead me to limit the scope of the procedure.” As is now obvious, both of these claims are simply untrue. Sturgeon did instruct that the procedure was to be developed in the way it was so that it could deal with her “concern” about Salmond. She did “limit the scope of the procedure” because of that concern. She ensured that her Government “developed a process” such that Alex Salmond’s fate would be decided, to all appearances at least, by unelected civil servants. She “limited the scope” of the procedure by removing herself completely from it. There is simply no other reasonable explanation for why the procedure changed so dramatically in December 2017. So, although it seems unaccountable to many, there’s really no mystery as to why Sturgeon continues to stand by her hapless civil servants as more and more shocking detail comes to light about their unlawful work on her behalf. Every unlawful thing those civil servants did was done by them so that Sturgeon would not have to do it herself. It was done so that she could plausibly deny, as she does to this day, that she had anything to do with it. These servants of hers have already, quite rightly, taken a great deal of criticism for their bad faith and incompetence, and as the inquiry continues, they can surely expect a great deal more. The unswerving loyalty of the person who set them up for this fall is, we should grant, the very least they can expect from her. (https://gordondangerfield.com/2020/10/11/salmond-inquiry-the-blunder-that-gives-the-game-away)
First Draft Procedure prepared by James Hynd
Handling of sexual harassment complaints against former Ministers
01. The Fairness at Work policy sets out the Scottish Government’s commitment, as an employer,
to provide a workplace free from unfair discrimination and to ensure the fair treatment of staff. The policy and associated procedures are being reviewed to ensure that they provide the necessary assurance to staff that complaints of any sort, including complaints of sexual harassment, will be given full and fair consideration.
02: The Fairness at Work policy does not deal directly with the handling of complaints raised by
staff in relation to former Ministers. This note sets out how complaints of this sort should be handled. In doing so, it acknowledges that these complaints are likely to be historical and that the nature of the relationship between the civil service and the former Minister will have changed (for example, former Ministers are no longer covered by the terms of the Scottish Ministerial Code). While these factors may place limitations on how a complaint may be considered or resolved, it remains important that complaints of this type receive equal consideration and that all necessary support is provided to the staff member.
03: Where a member of staff wishes to make a complaint against a former Minister the following
process will be used as a guide to take the issue forward:
04: Sources of Advice:
04.1: In considering how to proceed, the staff member may wish to speak to a senior line manager, up to and including their DG or if a member, a Trade Union.
05: Making a Complaint
05.1: At all times the staff member is free to make a complaint directly to the Police. Any Police investigation or criminal proceedings will take priority over any internal SG complaint handling process, although we will continue to offer support to the staff member. (If at any point it becomes apparent to the SG that criminal behaviour might have occurred, the SG will bring these matters directly to the attention of the Police.)
05.2: Where the staff member wishes to make a complaint they should provide as much information as possible about the matter to the (Director of The People Directorate), including details of possible witnesses. The (Director of The People Directorate) will either:
05.2.1: nominate a member of the SCS who has had no prior involvement in any aspect of the complaint, or.
05.2.2: If the member of staff prefers, pass the complaint to the SG’s external complaint procedure.
05.3: The role of Senior Civil Servant or external complaint service will be to review the
circumstances of the complaint and to discuss with the staff member how they wish the
complaint to be handled. Any serving SG members of staff identified as possible witnesses will
be interviewed at this stage.
06: Following this stage, the Senior Civil Servant/external complaint service will discuss their
findings with the staff member. At this point, their choices include:
06.1: Asking that a formal note of the complaint is recorded without further action. The SG
may, however, decide that some form of follow up action requires to be taken:, or
06.2: Indicating that they wish the complaint to be put to the former Minister and for
interviews to be held with any witnesses no longer in the SG.
07: The Permanent Secretary will be advised at that point about the nature of the complaint and
whether the matter is being taken up with the former Minister in question. If the former Minister is
a member of the Party of the current Administration the First Minister will also be advised.
08: If the former Minister agrees to cooperate, they will be provided with details of the complaint
and interviewed by the Senior Civil Servant/external complaint service. Any non-SG witnesses will also be invited to be interviewed at this time.
09. A report will then be prepared for the Permanent Secretary setting out the information that
has been obtained during the above process. The Permanent Secretary will consider the report from the perspective of ensuring the welfare and support arrangements for the staff member.
10. If the former Minister is a member of the Party of the current Administration the First Minister
will consider the report from the perspective of the actions of the former Minister. issues:
Sharing of the report with the complainant and former Minister?
Will complainant/SG be advised of any action against former Minister?
An appeal by the complainant to a DG?
11. If the former Minister declines to engage with the process they will be advised that a
complaint against them in the terms set out by the complainant will be formally recorded within the SG. Where the former Minister is a member of the Party of the current Administration the First Minister will be advised and will consider the matter from the perspective of the actions of the former Minister
The Final Procedure.
Handling of Harassment Complaints Involving Current or Former Ministers.
01: An individual may choose to raise an issue involving a current or former Minister through a number of mechanisms. These may include a trusted senior manager, direct to HR, or a Trade Union representative. If the approach is made through these routes it should be escalated to the Director of People for consideration and so that sources of support can be offered to the individual.
02: At this early point, it will be important to support the individual to consider the outcome they are seeking. At this point the staff member’s choices include:
02.1: Asking that their concern is acknowledged but without further action being taken, in order to recognize their experience and to assist our organizational commitment helping to prevent the circumstances from arising again (although, as set out at note (ii) below, the SG may require to take follow up action where deemed necessary in light of the concern being raised). The details of the concern, along with the staff member’s decision not to proceed with a formal complaint, will be held on file; or: 2.2 Indicating that they wish to make a formal complaint.
Formal complaints against current Scottish Government Ministers.
03: The Scottish Ministerial Code sets out the general principle that Scottish Ministers are expected to behave in a way that upholds the highest standards of propriety. Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions to Parliament and the public. The First Minister is, however, the ultimate judge of the standards of behaviour expected of a Minister, including in their interactions with civil servants, and of the appropriate consequences of a breach of those standards. Ministers can only remain in office for so long as they retain the First Minister’s confidence.
04: Alongside Ministerial responsibilities under the Code, the Scottish Government as an employer has a duty of care to staff. Where a formal complaint of harassment is raised about the conduct of a current Minister, the Permanent Secretary will inform the First Minister. In line with her responsibilities under the Ministerial Code, the First Minister has instructed the Permanent Secretary that complaints of this nature should be investigated using the process set out at
paragraphs 6-8, and to provide a report of the facts as provided by those concerned, or to establish if it is possible to seek a mutually agreed resolution between the parties involved.
05: In situations relating to complaints against a current Minister, the Permanent Secretary will also take appropriate steps to:
(1) Ensure that the staff member making such a complaint receives the necessary support throughout the process:
(2) Put in train any further action that might be required within the civil service as a result of the issues raised by any complaint.
06: In the event that a formal complaint of harassment is received against a current Minister, the Director of People will designate a senior civil servant as the senior officer to deal with the issue. That person will have had no prior involvement with any aspect of the matter being raised. The role of the senior officer will be to undertake an impartial collection of facts from the parties involved, including the Minister and any witnesses, and prepare a report for the Permanent Secretary. The report will also be shared with the staff member and the Minister.
07: The Permanent Secretary will inform the First Minister of the outcome of the investigation. It will be for the First Minister to decide the appropriate response to any complaint about a Minister in light of the report produced following the investigation. The Permanent Secretary will also consider the report and take any actions required within the civil service to protect staff and ensure a positive working environment.
08: Current Ministers will be expected to cooperate fully with such an investigation. If the Minister declines to co-operate with the process the matter will be investigated as far as possible without their involvement. They will be advised of the complaint against them and the outcome of the investigation undertaken. This will be recorded within the SG. The First Minister will be advised where a current Minister has declined to cooperate and will be responsible for any further action.
09: Where a formal complaint of harassment is raised against the First Minister, the Permanent Secretary will instigate an investigation as set out above in line with the employer’s duty of care to its staff and to assist the First Minister in discharging their responsibilities under the Code. The Permanent Secretary may draw upon the Independent Advisers on the Ministerial Code (the Rt. Hon. Dame Elish Angiolini QC DBE or James Hamilton) to reach a view on whether the First Minister has been in breach of the Code. The Permanent Secretary will take any action necessary to protect staff.
Formal complaints against former Scottish Government Ministers
10: In the event that a formal complaint of harassment is received against a former Minister, the Director of People will designate a senior civil servant as the senior officer to deal with the issue. That person will have had no prior involvement with any aspect of the matter being raised. The role of the senior officer will be to undertake an impartial collection of facts, including written statements from the complainant and any witnesses, and to prepare a report for the Permanent
11: If the Permanent Secretary considers that the report gives cause for concern over the former Minister’s behaviour towards current or former civil servants the former Minister should be provided with details of the complaint and given an opportunity to respond. The former Minister may wish to provide a statement setting out their recollection of events to add to the record. They may also request that statements are taken from other witnesses. If additional statements are collected the senior officer will revise their report to include this information and submit this to the
Permanent Secretary. The Permanent Secretary will consider the revised report and decide whether the complaint is well-founded. The outcome of the investigation will be recorded within the SG. The Permanent Secretary will also determine whether any further action is required; including action to ensure lessons are learned for the future.
12: For complaints involving a former Minister who is a member of the Party of the current Administration, the Permanent Secretary will inform the First Minister both in this capacity and in their capacity as Party Leader, of the outcome when the investigation is complete. In their capacity as First Minister, they will wish to take steps to review practice to ensure the highest standards of behaviour within their current Administration.
13: Where the former Minister was a member of an Administration formed by a different Party, the Permanent Secretary will inform the relevant Scottish Party leader of the outcome of the investigation and any action taken.
14: The final report will be provided to the staff member and the former Minister.
15: If the former Minister declines to co-operate with the process the matter will be investigated as far as possible without their involvement. They will be advised of the complaint against them and the outcome of any investigation undertaken. This will be recorded within the SG.
16: The First Minister will be advised where a current or former Minister who is a member of the Party of the current Administration has declined to cooperate and will be responsible for any further action.
17: Where the former Minister was a member of an Administration formed by a different Party, the Permanent Secretary will inform the relevant Scottish Party Leader of the outcome of the investigation and that the former Minister has declined to cooperate. It will be the responsibility of the Party to consider any further action.
(i) At all times the staff member is free to make a complaint directly to the Police. SG will co-operate fully with any Police investigation or criminal proceedings and may continue to investigate the complaint without awaiting the outcome of criminal proceedings. We will continue to offer support to the staff member.
(ii) Throughout the process, all available steps to support the staff member and ensure they are protected from any harmful behaviour. However, if at any point it becomes apparent to the SG that criminal behaviour might have occurred the SG may bring the matter directly to the attention of the Police. Also, if it becomes apparent that the matter being raised is part of a wider pattern of behaviour it may be necessary for the SG to consider involving the Police in light of the information provided. Should either of these steps be necessary the staff member will be advised and supported throughout. (Scottish Government December 2017)
Formal investigation of allegations of breaches of the Ministerial Code of Conduct by the First Minister
This is a submission from Alex Salmond to James Hamilton made following the latter’s repeated request that Alec assist in his examination of possible breaches of the Ministerial Code by the First Minister. The submission was also shared with the Parliamentary Committee due to its relevance to Phase Four of their Inquiry into complaints handling by Civil Servants, Government Ministers and Special Advisers. WhatsApp messages between Alex and Nicola Sturgeon had been previously provided to the Parliamentary Committee and did not form part of the submission, with the exception of a message dated 13th July 2018 which was attached unredacted at, (Appendix A)
Terms of Reference for Mr Hamilton framed to deliver a not guilty verdict – Alex Salmond Wrote
Mr Hamilton wrote to me on 8th September, 29th October, 16th November, 4th and 19th December. I replied on 6th and 17th October, 23rd November and 23rd December.
I finally agreed under some protest to make this submission. The reason for my concern is that the remit drawn up for Mr Hamilton focuses on whether the First Minister intervened in a civil service process.
As I have pointed out to Mr Hamilton, I know of no provisions in the Ministerial Code which makes it improper for a First Minister to so intervene.
To the contrary, intervention by the First Minister in an apparently unlawful process (subsequently confirmed by the Court of Session) would not constitute a breach precisely because the First Minister is under a duty in clause 2.30 of the Ministerial Code to avoid such illegality on the part of the Government she leads.
Further, to suggest intervention was a breach would be to ignore and contradict the express reliance of the procedure on the position of the First Minister as the leader of the party to which the former minister was a member in order to administer some unspecified sanction.
It will accordingly be a significant surprise if any breach of the Ministerial Code is found when the terms of reference have been tightly drafted by the Deputy First Minister to focus on that aspect of the First Minister’s conduct.
By contrast, I have information which suggests other related breaches of the Ministerial Code which should properly be examined by Mr Hamilton.
I have asked that he undertake that investigation. I have drawn his attention to the apparent parliamentary assurance from the First Minister on 29th October 2020 that there was no restriction on Mr Hamilton preventing him from doing so.
Mr Hamilton has failed to give me a clear response as to whether these related matters relevant to the Ministerial Code, but out with the specific remit, are going to be considered.
However, in his letter of 4th December he did indicate that he was inclined to the view that such matters could be considered and will take into account arguments for their inclusion. It is on that basis I make this submission.
In doing so, I would note that it does not serve the public interest if the independent process of examination of the Ministerial Code (which I introduced as First Minister) is predetermined, or seen to be predetermined, by a restrictive remit given by the Deputy First Minister.
A restricted investigation would not achieve its purpose of genuine independent determination and would undermine confidence in what has been a useful innovation in public accountability.
I would accordingly urge Mr Hamilton to embrace the independence of his role and the express assurance given to the Scottish Parliament by the First Minister that he is free to expand the original remit drafted by the Deputy First Minister and to address each of the matters contained in this submission.
Breaches of the Ministerial Code.
Beyond the terms of the remit set for Mr Hamilton by the Deputy First Minister, there are other aspects of the conduct of the First Minister which, in my submission, require scrutiny and determination in relation to breaches of the Ministerial Code.
I was contacted by phone on or around 9 March 2018 and further the following week by Geoff Aberdein, my former Chief of Staff. The purpose of the contact was to tell me about meetings he had held with the First Minister’s Chief of Staff, Liz Lloyd, at her request.
In the second of these meetings she had informed him that she was aware of two complaints concerning me under a new complaints process introduced to include former Ministers. She named one of the complainers to him. At that stage I did not know the identity of the other complainer.
On receipt of the letter from the Permanent Secretary first informing me of complaints on 7th March 2018 I had secured Levy and McRae as my solicitors and Duncan Hamilton, Advocate and Ronnie Clancy QC as my counsel.
Even at this early stage we had identified that there were a range of serious deficiencies in the procedure. There was no public or parliamentary record of it ever being adopted. In addition it contained many aspects of both procedural unfairness and substantive illegality.
There was an obvious and immediate question over the respect to which the Scottish Government even had jurisdiction to consider the complaints. In relation to former Ministers (in contrast to current Ministers) it offered no opportunity for mediation. The complaints procedure of which I was familiar (‘Fairness at Work’) was based on the legislative foundation of the Ministerial Code in which the First Minister was the final decision maker.
I wished to bring all of these matters to the attention of the First Minister. I did not know at that stage the degree of knowledge and involvement in the policy on the part of both the First Minister and her Chief of Staff.
Mr Aberdein had been asked by Ms Lloyd to be her contact with me and they jointly arranged a meeting with the First Minister in the Scottish Parliament on 29th March 2018. This meeting was for the purpose of discussing the complaints and thereafter arranging a direct meeting between myself and the First Minister.
There was never the slightest doubt what the meeting was about. Any suggestion by the First Minister to the Scottish Parliament (Official Report, 8th October 2020) that the meeting was ‘fleeting or opportunistic’ is simply untrue.
It was agreed on the 29th March 2018 at the meeting in the Scottish Parliament attended by Mr Aberdein and the First Minister that the meeting between myself and the First Minister would take place on 2nd April at her home near Glasgow. Self-evidently only the First Minister could issue that invitation to her private home.
In attendance at the meeting on 2nd April 2018 were Mr Aberdein, Mr Hamilton, Ms Lloyd and myself. The First Minister and I met privately and then there was a general discussion with all five of us.
My purpose was to alert the First Minister to the illegality of the process (not being aware at that time of her involvement in it) and to seek an intervention from the First Minister to secure a mediation process to resolve the complaints.
I was well aware that under the Ministerial Code the First Minister should notify the civil service of the discussion and believed that this would be the point at which she would make her views known. The First Minister assured us that she would make such an intervention at a appropriate stage.
On 23rd April 2018, I phoned the First Minister by arrangement on WhatsApp to say that a formal offer of mediation was being made via my solicitor to the Permanent Secretary that day. In the event, this offer was declined by the Permanent Secretary, even before it was put to the complainers.
By the end of May, it was becoming clear that the substantial arguments my legal team were making in correspondence against the legality of the procedure were not having any impact with the Permanent Secretary.
My legal team advised that it was impossible properly to defend myself against the complaints under such a flawed procedure. They advised that a petition for Judicial Review would have excellent prospects of success given the Government were acting unlawfully.
However I was extremely reluctant to sue the Government I once led. I wanted to avoid the damage both to the Scottish Government and the SNP which would inevitably result. To avoid such a drastic step, I resolved to let the First Minister see the draft petition for Judicial Review. As a lawyer, and as First Minister, I assumed that she would see the legal jeopardy into which the government was drifting. I therefore sought a further meeting.
On 1st June 2018 the First Minister sent me a message which was the opposite of the assurance she had given on the 2nd April 2018 suggesting instead that she had always said that intervention was “not the right thing to do”.
That was both untrue and disturbing. On 3rd June 2018 I sent her a message on the implications for the Government in losing a Judicial Review and pointing to her obligation (under the Ministerial Code) to ensure that her administration was acting lawfully and (under the Scotland Act) to ensure that their actions were compliant with the European Convention.
The First Minister and I met in Aberdeen on 7th June 2018 when I asked her to look at the draft Judicial Review Petition. She did briefly but made it clear she was now disinclined to make any intervention.
My desire to avoid damaging and expensive litigation remained. My legal team thereafter offered arbitration as an alternative to putting the matter before the Court of Session. That proposal was designed to offer a quick and relatively inexpensive means of demonstrating the illegality of the procedure in a process which guaranteed the confidentiality of the complainers.
It would also have demonstrated the illegality of the process in a forum which would be much less damaging to the Scottish Government than the subsequent public declaration of illegality.
I was prepared at that time to engage fully with the procedure in the event my legal advice was incorrect. In the event, of course, it was robust. I explained the advantages of such an approach to the First Minister in a WhatsApp message of 5th July 2018.
I received a message via Geoff Aberdein from her Chief of Staff Liz Lloyd (the initial the First Minister has redacted from my relevant WhatsApp message is “L”) on the 13th July 2018 that the First Minister wanted to see me again and we met once again at her house at her request the following day, 14th July 2018. This is shown at Appendix A.
There was no-one else at this meeting. She specifically agreed to correct the impression that had been suggested to my counsel in discussions between our legal representatives that she was opposed to arbitration. I followed this up with a WhatsApp message on the 16th July 2018.
On 18th July 2018 the First Minister phoned me at 13.05 to say that arbitration had been rejected and suggested that this was on the advice of the Law Officers. She urged me to submit a substantive rebuttal of the specific complaints against me, suggested that the general complaints already answered were of little consequence and would be dismissed, and then assured me that my submission would be judged fairly.
She told me I would receive a letter from the Permanent Secretary offering me further time to submit such a rebuttal which duly arrived later that day. As it turned out the rebuttal once submitted was given only cursory examination by the Investigating Officer in the course of a single day and she had already submitted her final report to the Permanent Secretary.
My view is now that it was believed that my submission of a rebuttal would weaken the case for Judicial Review (my involvement in rebutting the substance of the complaints being seen to cure the procedural unfairness) and that the First Minister’s phone call of 18th July 2018 and the Permanent Secretary’s letter of the same date suggesting that it was in my “interests” to submit a substantive response was designed to achieve that.
In terms of the meetings with me, the only breaches of the Ministerial Code are the failure to inform civil servants timeously of the nature of the meetings.
My view is that the First Minister should have informed the Permanent Secretary of the legal risks they were running and ensured a proper examination of the legal position and satisfied herself that her Government were acting lawfully.
Further once the Judicial Review had commenced, and at the very latest by October 31st 2018 the Government and the First Minister knew of legal advice from external counsel (the First Minister consulted with counsel on 13th November) that on the balance of probability they would lose the Judicial Review and be found to have acted unlawfully.
Despite this the legal action was continued until early January 2019 and was only conceded after both Government external counsel threatened to resign from the case which they considered to be unstateable. This, on any reading, is contrary to section 2.30 of the Ministerial Code.
Most seriously, Parliament has been repeatedly misled on a number of occasions about the nature of the meeting of 2nd April 2018.
The First Minister told Parliament (see Official Report of 8th,10th & 17th January 2019) that she first learned of the complaints against me when I visited her home on 2nd April 2018. That is untrue and is a breach of the Ministerial Code.
The evidence from Mr Aberdein that he personally discussed the existence of the complaints, and summarised the substance of the complaints, with the First Minister in a pre arranged meeting in Parliament on 29th March 2018 arranged for that specific purpose cannot be reconciled with the position of the First Minister to Parliament.
The fact that Mr Aberdein learned of these complaints in early March 2018 from the Chief of Staff to the First Minister who thereafter arranged for the meeting between Mr Aberdein and the First Minister on 29th March to discuss them, is supported by his sharing that information contemporaneously with myself, Kevin Pringle and Duncan Hamilton, Advocate.
In her written submission to the Committee, the First Minister has subsequently admitted to that meeting on 29th March 2018, claiming to have previously ‘forgotten’ about it. That is, with respect, untenable.
The pre-arranged meeting in the Scottish Parliament of 29th March 2018 was “forgotten” about because acknowledging it would have rendered ridiculous the claim made by the First Minister in Parliament that it had been believed that the meeting on 2nd April was on SNP Party business (Official Report 8th & 10th January 2019) and thus held at her private residence.
In reality all participants in that meeting were fully aware of what the meeting was about and why it had been arranged. The meeting took place with a shared understanding of the issues for discussion – the complaints made and the Scottish Government procedure which had been launched.
The First Minister’s claim that it was ever thought to be about anything other than the complaints made against me is wholly false.
The failure to account for the meeting on 29th March 2018 when making a statement to Parliament, and thereafter failing to correct that false representation, is a further breach of the Ministerial Code.
Further, the repeated representation to the Parliament of the meeting on the 2nd April 2018 as being a ‘party’ meeting because it proceeded in ignorance of the complaints is false and manifestly untrue. The meeting on 2nd April 2018 was arranged as a direct consequence of the prior meeting about the complaints held in the Scottish Parliament on 29th March 2018.
The First Minister additionally informed Parliament (Official Report 10th January 2018) that ‘I did not know how the Scottish Government was dealing with the complaint, I did not know how the Scottish Government intended to deal with the complaint and I did not make any effort to find out how the Scottish Government was dealing with the complaint or to intervene in how the Scottish Government was dealing with the complaint.’
I would contrast that position with the factual position at paragraphs 20 and 27 above. The First Minister’s position on this is simply untrue. She did initially offer to intervene, in the presence of all those at the First Minister’s house on the 2nd April 2018.
Moreover, she did engage in following the process of the complaint and indeed reported the status of that process to me personally.
I also believe it should be investigated further in terms of the Ministerial Code, whether the criminal leak of part of the contents of the Permanent Secretary’s Decision report to the Daily Record was sourced from the First Minister’s Office.
We now know from a statement made by the Daily Record editor that they received a document. I enclose at Appendix B the summary of the ICO review of the complaint which explains the criminal nature of the leak and the identification of 23 possible staff sources of the leak given that the Prosecutor has “sympathy with the hypothesis that the leak came from an employee of the Scottish Government”.
My reasoning is as follows. The leak did not come from me, or anyone representing me. In fact I sought interdict to prevent publication and damage to my reputation. The leak is very unlikely indeed to have come from either of the two complainers.
The Chief Constable, correctly, refused to accept a copy of the report when it was offered to Police Scotland on August 21st 2018 by the Crown Agent. It cannot, therefore have leaked from Police Scotland.
Scottish Government officials had not leaked the fact of an investigation from January when it started.
The only additional group of people to have received such a document, or summary of such a document, in the week prior to publication in the Daily Record was the First Minister’s Office as indicated in paragraph 4.8 of the ICO Prosecutor’s Report. In that office, the document would be accessed by the First Minister and her Special Advisers.
I would be happy to offer further information on this submission.
Rt Hon Alex Salmond
31st December 2020
Four members of the Holyrood Inquiry committee followed up on the Alex Salmond letter and wrote to the Deputy First Minister requesting that he formally widen the scope of the Ministerial code investigation to address to resolve concerns pertaining to the wishy washy statements issued from his office that the present remit of the Hamilton investigation was sufficient in its scope. Which was incorrect. Copy attached