17 December 2018: Joint Note by , Roddy Dunlop & Christine O’Neill, senior and Junior Counsel for the Respondents in the Petition of Alex Salmond, Petitioner, for Judicial Review
We have drafted this note for the eyes of the Lord Advocate and Paul Cackette only.
It has been prepared in response to a series of events in the week of 10 December 2018 which led us to consider very seriously whether we were bound to withdraw from acting for the respondents in this matter.
Having given the question anxious consideration we concluded that we would be entitled to so withdraw but at this stage are not bound to do so. We introduce matters in this way to convey the seriousness of matters from our perspective. It is a matter for the recipients of this note to decide on its wider circulation but our own preference is that the note itself is not circulated more widely.
We would wish to avoid damaging working relations with the wider SGLD and Scottish Government team involved in instructing us. We also do not wish to add to any perception there may be that we are not committed to the case. We have prepared a separate note dealing with practical matters that need to be attended to and have no difficulty with that being circulated more widely.
Disclosure of documents
On Tuesday 11 December we met with counsel for the petitioner to discuss their specification of documents with a view to narrowing the scope of any order to be sought. In the course of that meeting, counsel for the petitioner were told that the redactions made to documents already disclosed had been made on the instruction of junior counsel for the respondents. We understood that to be the case.
On Wednesday 12 December, in the course of preparation for the hearing fixed for 14 December, junior counsel identified a redaction that had not been instructed by her.
The document redacted was an email chain involving Nicky Richards, [Redacted] and Gillian Russell. Two emails in the chain had been copied to a [Redacted]. We understand that the inclusion of [Redacted] in the email chain was an error arising out of a predictive email address function: [Redacted] intended to copy in Nicky Richards but [Redacted] was copied instead. [Redacted] is a former colleague of [Redacted]. Instead of the unredacted email being supplied to the petitioner’s agents and an explanation
provided for the error, the email was redacted.
The petitioner’s agents subsequently sought an explanation for the redaction and they were told that the email had been sent to a recipient in error. The issue had not been specifically flagged with counsel at the time of original disclosure or subsequently (albeit junior counsel had been copied into a draft of an email to the petitioner’s agents that answered a long list of queries about redacted documents and which made reference to an email having been wrongly addressed).
When this issue was identified on Wednesday 12 December an immediate and clear direction was given that the unredacted email should be disclosed to, the petitioner’s agents in advance of the hearing on Friday 14 December. It was intended that the disclosure should be made at the same time as a small number of additional documents, identified in the course of further searches and including an email that we had not previously seen from Ms A to the Permanent Secretary of 3 November 2018 indicating support for the Permanent Secretary’s. announcement of the review of harassment policies and expressing views on the content of that review; were also to be disclosed.
Disclosure was thought to be essential not only on grounds of candour but to try to defuse what we eared would be the reaction of the petitioner to the unredacted email. It is an email chain in which Gillian Russell asks questions of Judith Mackinnon about the circumstances in which complaints of harassment should be reported to the Police and is in the context of wider exchanges about the developing policy for handling complaints against ministers and former ministers.
We were (and remain) concerned that it will add fuel to the fire of the petitioner’s ‘conspiracy theory’.
We were both committed to other matters on Thursday 13 December (junior counsel being engaged in a debate in another matter for Scottish Government).
On the evening of 13 December, having reviewed emails that had been sent in the course of the day, junior counsel asked for confirmation that (as it appeared) the unredacted email had not been disclosed.
That confirmation was given together with an explanation that there was a concern about the GDPR implications of releasing an email with an addressee outside of the Scottish Government.
No advice had been sought from us about this issue and we had not been told proactively about the non-disclosure. After considerable discussion on Friday morning, we reached the view that we could not properly advise the Court that the Scottish Government had discharged its duty of candour. We sought and received instructions that the motion for commission and diligence should be conceded.
In advance of the hearing, and in an effort to minimise any damaging comment that might be made by counsel for the petitioner, we disclosed the unredacted email to counsel for the petitioners, tendered the explanation that had been given to us about the error and agreed to ‘lead’ in the hearing.
In the event senior counsel for the petitioner did not make reference in open court to the further disclosure. However, in relation to the motion more generally, senior counsel for the respondents felt bound to make the early concession that the petitioner was justifiably able to say that he was not satisfied that searches are exhausted.
Lord Pentland asked senior counsel for the petitioner
whether the petitioner’s concern that essentially for whatever reason the Scottish Government may not have carried out an entirely comprehensive search of any possible place where documents may be held.
Senior counsel for the petitioner, of course, concurred. It is envisaged that there will be an open commission in the course of the week of 17 December. We trust it will be obvious why this matter has given rise to such concern on our part about our ability to continue to act. Assurances had been given on a counsel to counsel basis about the reasons for redaction of documents. Counsel for the petitioner withdrew their application to have the commissioner consider redactions that had been made on grounds of legal professional privilege because they were prepared to accept the assurances given that such redactions had been made on the instruction of junior counsel.
Having identified that the assurances that had been given required qualification, we expected that our direction as to disclosure of the unredacted email would have been acted upon timeously. That it was not so disclosed left us in an extremely difficult position professionally. The way in which this has been dealt with has also been damaging to the respondents’ interests.
It is clear that the Lord Ordinary is unimpressed at being faced with a situation in which it appears that the Scottish Government has not acted with full candour and in which a commissioner has had to be appointed.
It seems inevitable that parties will now be put to expense and inconvenience of a commission. It is not yet clear whether the petitioner will accept the presence at that commission of a senior civil servant such as [Redacted] rather than, for example, the Permanent Secretary herself (as was adverted to by senior counsel for the petitioner as a possibility).
All of this is extremely frustrating because it seems to us it was entirely avoidable. Had the email been disclosed in full at the outset any questions about the circumstances in which the error was made could have been addressed at that time.
The Permanent Secretary
As was discussed at the consultation on Monday 10 November, the petitioner’s most recent adjustments have introduced a case of apparent bias against the Permanent Secretary based on her knowledge in November and December 2017 of the complaints being made by Ms A and Ms B and her knowledge of the involvement of Judith Mackinnon in the management of those complaints.
We had understood from the consultation that a full statement was to be taken from the Permanent
Secretary to allow those adjustments to be answered. After the consultation junior counsel indicated to those instructing us that the Permanent Secretary should, in particular, be taken through the documents that had been disclosed and that indicated knowledge on her part. Junior counsel asked for that statement to be available by the morning of Thursday 13 December at the latest to enable adjustments to be prepared and intimated in the course of Thursday.
By email around noon on Thursday we received a note concerning the Permanent Secretary’s position. It was not a precognition: it comprises 4 short paragraphs and it is not clear to us that it is in the Permanent Secretary’s own words.
Junior counsel prepared very limited adjustments for intimation. They do not in our view answer fully the issue of apparent bias put by the petitioner in his pleadings.
The respondents’ position on record is weaker than it might be. It is not clear to us why a full precognition has not been taken.
We have the ‘advantage’ that the Court has allowed further adjustment of the petition and answers until the week before the substantive hearing and so further adjustment is possible.
However it ought to be possible for us to put the Permanent Secretary’s position fully and clearly in early course.
We would wish to have the precognition previously discussed. As with the disclosure of documents, the approach to this aspect of matters is making it unnecessarily) difficult for us to put the respondents’ best foot forward.
We hesitate to raise matters that are not properly our province. We are concerned, however, that the difficulties that have arisen particularly (but not exclusively) in the last week have been contributed to by limitations on the resources available for management of the case at solicitor level.
We would emphasise that this is not intended as a criticism of any individual (and hence our desire to limit the circulation of this note). We are conscious that there is one principal solicitor with responsibility for management of the case. [Redacted] was previously supported by a second solicitor [Redacted] but we understand that solicitor is [Redacted]. It seems clear to us that the further preparations that will be needed particularly in the organisation of documents requires additional resource dedicated to this case.
17 Dec 2018: Scottish government advised by legal counsel that action against Alex Salmond is indefensible
The Legal Advisors to the Scottish government, Roddy Dunlop QC and Christine O’Neill, Solicitor Advocate, wrote a joint letter outlining Alex Salmond’s approach to the hearing, saying:
It has become increasingly clear that the approach of Alex Salmond in this matter is one which may appropriately be described as a “scorched earth” one. It is clear that there is no concern on his part as to who might be criticised, or harmed, as a result of these proceedings and we understand that this is well understood by those, in the crosshairs most obviously the Permanent Secretary and the First Minister. If instructions are to proceed notwithstanding then so be it.
We are not yet in a position where we are professionally unable to mount a defence. We are, however, perilously close to such a situation and are firmly of the view that at least one of the challenges mounted by Alex Salmond will be successful.
We have been told that other legal opinion (the Lord Advocate) available to the government advises that there are other aspects to the case which justify the running of a defence and that, accordingly, there is no prospect of the petition being conceded. That decision is not for us to take and as long as informed consent is given the decision to proceed is one which we must obey.
Afternote: So Ms A and Ms B, the complainers were never more than vehicles to which Sturgeon and her government hitched their campaign. They were expendable. Sad but true!!
We are, however, entirely unconvinced as to what benefit that might arise from the hearing in January that might outweigh the potentially disastrous repercussions thereof.
Leaving aside the large expenses bill that would inevitably arise, the personal and political fallout of an adverse decision especially if, as may be the case, it is attended by judicial criticism seems to us to be something which eclipses by some way the possibility of helpful judicial comments.
A way out would be to accept (as is our genuine advice as a matter of law) that the appointment of Julia McKinnon as Investigating Officer was, whilst made in bona fide, on reflection indefensible. That would render nugatory all of the other, potentially more harmful, aspects to the challenge.
Accepting that a technical error was made could not sensibly be criticised and would protect those that might otherwise be harmed by the vigorous nature of the challenge that is to be mounted and it might help to stem the substantial expenses bill that we have no doubt is presently being incurred. Given that we genuinely cannot see the defence prevailing in any event, that seems to us to be the only sensible approach.
We are acutely aware that much of the foregoing advice has already been given by us and discounted and the decision to proceed has been taken by very experienced legal and political minds, who are entitled to proceed as they wish.
However, we are independently but also mutually unable to see that the benefits in proceeding come close to meeting the potential detriments in so doing.
Given the potential for harm we simply wish all concerned and we include the First Minister in this to be absolutely certain that they wish us to plough on regardless notwithstanding the concerns which we have outlined.
Panic button activated for a second time by legal counsel
19 December 2018: Joint note by Roddy Dunlop QC and Christine O’Neill (senior and Junior counsel) for the Respondents in the Petition of Alex Salmond, Petitioner, for Judicial Review
We write further to recent events. With regret, our dismay at this case deepens yet further. We will not rehearse the regrettable way in which document disclosure has unfolded. Suffice to say that we have each experienced extreme professional embarrassment as a result of assurances which we have given, both to our opponents and to the court, which assurances have been given on instructions, turning out to be false as a result of the revelation of further
documents, highly relevant yet undisclosed.
We, of course, required to consult at 9.15pm last night to discuss the ramifications thereof. This morning, the first part of the commission began. The inevitable result of the last minute disclosure of the additional documents was that the commission required to be adjourned.
The havers now cited for Friday can expect a torrid time in the witness box given the late disclosures. That comment applies in particular to Julia MacKinnon, for the reasons which follow. All of that is bad enough. However, it pales beside the revelation in the course of this morning of two further documents from Julia MacKinnon. These give rise to concerns we discussed in the last night’s consultation about the late nature of the revelation and the content.
As to the late nature of the revelation, this is unexplained, and frankly inexplicable. Given the nature of the searches described by as having been undertaken, we regret that we simply cannot understand why these documents have been made available only now. Julia MacKinnon should be warned that she will be pressed on why these documents, and indeed the OneNote extracts provided yesterday, were not both discovered and disclosed long before now.
As to their content, the two documents now made available cause us both real concern. The first is a letter from Julia MacKinnon to Ms A. It is dated 17 January 2018. It begins as follows:
“Ms A. Following this meeting you submitted a letter dated 17 January 2018 at 2pm.”
This letter gives rise to various concerns, which we set out on an escalating basis as follows:
“The letter is dated the same day as the meeting, this must have been sent by email. Where is the email?”
This letter suggests that there must have been other communications with Ms A in advance of the meeting of 16 January 2018 or how would the meeting have been arranged? No documents in this regard have been forthcoming.
It will be recalled that at 12.19pm, Julia MacKinnon was appointed as such by email of the same date at 12.45pm. The email reads as follows:
“Julia would you be able to review this and get the investigation underway? ”
There is little doubt that it will be contended that the email is disingenuous. The revelation causes acute difficulties regarding the way in which we have, again on instructions, pled this case.
Looking to the Record as it stands:
Ms A emailed Julia MacKinnon on 19 December 2017 informing her that she was minded to pursue a formal complaint against the petitioner. The complainer requested a meeting to discuss the practicalities of this. The respondents are called upon to aver whether and if so when that meeting took place and if it did what was discussed and/or agreed.
The respondents are called upon to aver the full extent of the instructions, we have answered those averments as follows:
“Emailed Ms A on 19 December 2017 in response to queries raised by her about the implications of making a complaint That email is produced.”
There was no further meeting with Ms A prior to 16 January 2018 when she made her formal complaint.
We cannot suggest that the highlighted averment in the answers discloses a meeting on 16 January, before the complaint was submitted. That is not what the averment says. Rather, in order to address the complaint of prior involvement, we have averred that there was no further meeting with Ms A before she made her complaint. That is, it would now appear, plainly and demonstrably SP untrue.
We have been given two draft affidavits from Julia MacKinnon. Mercifully, neither has yet been lodged.
The first (13 December 2019) contains the following:
“On 16 January 2018 Ms Richards emailed to inform me that she had received an official complaint from Ms A, with the written complaint attached. In the email she stated that she was appointing me Investigating Officer (IO). She informed me that she had told Ms A that I had been appointed and that I would be in touch. I contacted Ms A to arrange the next steps.”
The lack of any mention of the meeting of 16 January 2018 in what is meant to be a sworn affidavit for use in Court is, frankly, alarming. The letter indicates that Julia MacKinnnon met with Ms A immediately before the complaint was submitted, and that immediately thereafter she was appointed to investigate the complaint when she had met with Ms A only 30 minutes before to discuss it. We trust that we do not need to say any more about how that appears.
The second document now disclosed is an email chain, some of which has been seen before.
An email of 24 January 2018 at 1:56pm, from complainer Ms B to Julia MacKinnon, making her complaint. Thus far, we have seen these emails. What is yet more alarming, however, is what follows in the email chain.
By response of the same date at 2.23pm i.e. less than half an hour later Julia McKinnon responds saying that she has and will be meeting her the following day. Allowing for a need for haste, questions will inevitably arise from this.
Plainly there must have been further undocumented contact in which Julia MacKinnon agreed to meet Ms B. It is unclear whether this preceded or post dated the making of the complaint. The complaint had only just been made. No one had appointed an IO for this complaint. Julia MacKinnon effectively appointed herself in that regard.
All of this gives rise to two concerns:
1. We are now in a position where we think that maintaining a defence of the appointment of Julia MacKinnon may be unstatable (undefendable). Given the timescales we are reluctant to take a final view on this, but there is a real risk that we so conclude.
2. We are each in a position which is, so far as dealings with the other side and the court are concerned, close to untenable. Again, given the timescales we are reluctant to take a final view on this, but there is a real risk that we so conclude.
We are to meet with the Lord Advocate at 4pm and this note has been prepared in haste to allow him to consider same in advance thereof. We will leave further comment to that meeting.
8 January 2019: Sturgeon reluctantly accepted legal counsel advice, conceded the case and the Scottish taxpayer paid the penalty
The Scottish government admitted acting unlawfully while investigating sexual harassment allegations against Alex Salmond. The government admitted it breached its own guidelines by appointing an investigating officer who had “prior involvement” in the case. As a result, it conceded defeat in its legal fight. Judge Lord Pentland subsequently said that the government’s actions had been “unlawful in respect that they were procedurally unfair” and had been “tainted with apparent bias”.
Afternote: So there it is. Sturgeon was well aware that her much vaunted “new” procedure was full of holes and had the potential to do great harm to the government and a number of senior officers in it and at the very last minute just before the start of the judicial review she belatedly took the advice of counsel and conceded the case on one of the least damaging of the many failings highlighted to her by legal counsel. She threw Julia MacKinnon under a bus. What was particularly unedifying was the conduct of Sturgeon and Evans after losing the case when they publicly announced that Alex Salmond had got lucky, winning the case on a minor technicality, well knowing the “new” procedure had been created with the single purpose of destroying Alex Salmond was riddled with many serious errors
Speaking outside the Court of Session in Edinburgh, Alex Salmond said the case had resulted in “abject humiliation” for the Scottish government. Adding: “The last time I was in that court was to be sworn in as first minister of Scotland. I never thought it possible that at any point I would be taking the Scottish government to court.
Therefore while I am glad about the victory which has been achieved today, I am sad that it was necessary to take this action. This case will cost the Scottish Government in excess of £500,000 and the Leslie Evans, the Permanent Secretary should consider her position”
Roddy Dunlop QC
The Lawyer for the Scottish government, Roddy Dunlop QC, told the court:
“The investigating officer is a dedicated HR professional who acted in good faith, but she did have some contact with the complainers before being appointed to the case and this has led the government to accept there has been a failure in one aspect of the investigation, which could give the impression that they were not acting impartially. The government does not accept claims that the investigating officer assisted the complainers and provide encouragement to them to make the complaints.
Nicola Sturgeon, arranged an early appearance on BBC television and said:
“Only in one particular aspect of the application of the procedure did the Scottish government get it wrong. There was no suggestion of any partiality in the process. and it is not my view that the Scottish government’s permanent secretary, should resign. I asked Ms Evans to draw up the new procedures for handling sexual harassment claims, which I signed off shortly before the complaints against Alex Salmond were made in January of last year.
It is deeply regrettable that we are in the situation we are in today, not least for the two complainers who had a right to expect that the process would be in every respect robust. I think the permanent secretary was absolutely right when these complaints came forward to subject them to an investigation and not to sweep them under the carpet because of the identity of the person complained about. I had no role in the process and I did not seek to intervene in it at any stage, nor indeed did I feel under any pressure to do so.
In a statement released immediately after the case folded, she said:
“I want to apologise to all involved for the failure in the proper application of this one particular part of the procedure, and in particular the two complainers. There is nothing to suggest that the investigating officers did not conduct their duties in an impartial way.
Unfortunately, the interactions with the complainers in advance of the complaints being made meant that the process was flawed, however impartially and fairly the investigating officer conducted the investigation.
It was right and proper that these complaints were investigated and the one procedural flaw in the investigation does not have implications, one way or the other, for the substance of the complaints or the credibility of the complainers.
It remains open to the Scottish government to re-investigate the complaints and subject to the views of the complainers it would be our intention to consider this. But only be once ongoing police inquiries have concluded”.