The first months
In the Autumn of 2017, Nicola Sturgeon instructed Leslie Evans to complete a review of the harassment policy of the Government and to bring forward proposals for change drafting revised procedures in line with the Scottish Government’s transparency in government drive. The review was completed and the consensus was that they required very little updating but for no identifiable reason a decision was taken to write up new procedures which when in place would render the long standing and successful ” fairness at Work” policy redundant. James Hynd compiled the first and second drafts of the new procedures thereafter fully involving Nicola Richards and Judith MacKinnon and others in the process resolving issues refining the policy.
It was this work that brought about the perverse introduction of an untried, unauthorised by the UK Government, and illegal procedure in law for receiving and resolving complaints of harassment against former Minsters.
Ignoring all warnings the new procedures were signed off by Nicola Sturgeon in late December 2017. Less than 2 weeks later, in January 2018, two complainants came forward with allegations of harassment against Alex Salmond under the new rules.
To the uninformed observer it appeared there had been “malice aforethought” and the complainants had been waiting for the new rules to come into force since no effort was made to register the allegations in the previous 4 years. The complainants alleged incidents they said occurred in 2013 (four years before).
Mackinnon, who had no direct management authority over the complainants spoke to both of them at length on a number of occasions whilst she was still involved in the process of developing the new policy opening herself to accusations that she had acted in a manner bordering on encouraging the complainants to proceed with formal complaints against Alex Salmond. When legally challenged on the matter in the high court the Government legal team accepted there had been a “significant amount of inappropriate direct personal contact” between Mackinnon and the complainants.
Evans, who appointed Mackinnon to formally investigate the allegations said she had acted on the advice of a senior colleague in Human Resources (Richards). But also had discussions with the complainants and in doing so compromised the procedures she and Mackinnon had only recently put in place.
07 November 2017: Hynd, Richards and MacKinnon exchange opinions on how to deal with harassment complaints against former Ministers. McKinnon tabled a “routemap” of a policy which suggested application to former Ministers. Hynd not happy advised seek legal opinion. The team are clearly in the early stages of introducing procedures against former Ministers.
08 November 2017: Hynd delivered a first draft procedure applying only to Former Ministers. Referring to his work and that of MacKinnon he said that “neither of the pathways involving Ministers lo
23 November 2017: Richards sent an e-mail to Evans, copied to Mackinnon “we would need to consult with the individual before disclosing to another party or the Police because of the risk of the matter getting into the press and the individuals being identified. We have a duty of care for our staff which means we shouldn’t do something that puts them at risk, so if they don’t want us to share information or go to the police, it would be very difficult to justify (sic) doing so (without putting them at risk of being identified and wider impacts).
23 – 28 November 2017: Cluster of emails between Richards, MacKinnon, Allison and Russell discussing their approach to the 2 complainants included meeting with and sharing the content of the draft policy procedures.
23 November 2017: Gillian Russell. The soundboard officer getting a wee bit hot under the collar. Instructions unclear. This was subsequently changed on 9th January 2018 to read “SG as employer will not refer specific cases to police without the knowledge/consent of the employee.”
24 November 2017: The input of Lloyd to the process was understated by Evans. They couldn’t fart without her permission!!!!
29 November 2017: Russell wrote to Ms A “as agreed, I sent your narrative on in confidence to Nicky (Richards) and Judith (Mackinnon). I have now been asked by Nicky and Judith if you would be prepared to speak to them following receipt of your narrative. As part of this discussion Nicky would like to share with you the developing policy for handling complaints against former and current ministers. This would give you an opportunity to test whether this would have helped at the time and also to consider next steps.” Later that day Ms A agreed to do so but reiterated her wish to speak first personally with Sturgeon.
29 November 2017: Richards, met with Evans, who then went on to have a “summit meeting with Sturgeon, “to discuss the development and next move” of a new harassment procedure against former ministers.
01 December 2017: Hynd sent the “eighth” harassment policy draft to Richards. Note the not so subtle change in the procedure to fit the Ms B complaint against Alex.
04/05 December 2017: Richards, redrafted parts of the “eighth” draft procedure completing her work 2334 hours on the evening of 5 Dec. She then forwarded it as the “Ninth” draft, under cover of an email, to Evans, Hynd, MacKinnon, and an unnamed lawyer. The email stated: “As discussed earlier today, I’ve made some revisions to the process.”
Comment: There was evidently some urgency in moving the matter forward to a conclusion, confirmed in yet another email 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 Servant team, supported by legal opinion were confident it would be signed off and introduced as policy.
05 December 2017: Procedure recast yet again. In all eight previous drafts of the complaints procedure up to 05 December 2017, the First Minister had a central role. She was to be informed as soon as a formal complaint against a former Minister was made. She was to take any steps necessary to ensure the former Minister cooperated with the investigation. She was to be informed when the investigation of the complaint was completed, and any further action on the complaint was hers to consider and take.
In the ninth draft, sent out by Richards at close to midnight on 05 December 2017, all of this was suddenly gone. The First Minister now had no role at all. The Permanent Secretary would now decide whether a complaint against a former Minister was well-founded, and the Permanent Secretary would determine what further action was to be taken on it.
06 December 2017: At 0528 hours 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.”
06 December 2017, Richards sent a “Ninth” draft to Evans, already calling it the “final version” of the procedure. She was right. This version was essentially what was approved by the First Minister on 20 December 2017, and was the procedure used against Alex Salmond.
06 December 2017: Richards, met with Ms B and shared with her the content of the “Ninth” draft procedure.
Afternote: In her statement to the Holyrood Inquiry Richards said she shared the “Ninth” draft policy with Ms B in part so she could make an “informed decision” about whether to make a formal complaint. She went on to say ” the reasons why we shared that, we were trying to establish, in terms of our learning as an organisation, whether this would have made any difference to them at the time, would it have made it more possible to raise issues about a first minister or former first minister?
It was done so that if they decided to proceed to formal complaint, they had an awareness of the policy likely to be applied.” She followed up by saying “As well as sending Ms B the draft policy I had a hard copy of it when I spoke to another woman but she did not come forward with a complaint”.
Answering a question about an email she sent to another possible complainer, (copied to the investigating officer, MacKinnon) in which she suggested to her that she should wait until the New Year before making a complaint she said: “I think I was going on holiday the next day”. But she lied: The woman sent the hard copy procedure was being fished to register a complaint and she subsequently did.
06 December 2017: Mackinnon, met with Ms A and after sharing the draft procedures gained from her confirmation that had the new procedures been in place at the time she was sexually harassed it would have been of benefit providing clear instructions as to the courses of action available to her.
06 December 2017: In written evidence submitted to the Holyrood Inquiry, Deputy Chief Constable Fiona Taylor said that Police Scotland had been consulted on legal content and procedures appropriate for inclusion at the time a new complaints policy that included current and former ministers was in the process of being finalised. The Police advised that: “where criminality was suspected, individuals should be directed to support and advocacy services, to enable them to make informed decisions about whether or not to report matters to the police”. Police Scotland advised the Scottish Government not to launch investigations into potentially criminal allegations of harassment, warning civil service staff were not trained to investigate or “engage with victims”. The Government persisted with their enquires between December 2017 and August 2018 raising: “a number of hypothetical questions” about its harassment policy that appeared to be about a “specific set of circumstances”. The hypothetical questions suggested more than one victim of potential criminality and as such, it was stressed that without knowledge of the detail any risk that a suspect might present could not be properly assessed or mitigated.
Early January 2018: There was an exchange of emails instigated by Mackinnon between herself and the police. MacKinnon: “Wonder if you can help – hypothetically speaking of course. “If, after an internal investigation, the Scottish Government becomes aware that a member of staff has been the subject of a potential criminal act, can you advise if there is a difference depending on whether the employee reports the issue to the police themselves or the Scottish Government reports it on behalf of the employee…”
Police response: “It makes no difference who reports it to police. The employee would be the victim and the Scottish Government would be the witness. I hope this helps but slightly concerned regarding the level of discussion which is clearly ongoing at your end but I guess that will be for Scottish Government to manage and navigate.”
MacKinnon replied: “Can I check one more thing with you? Who makes the decision to press charges? If the complainers, victims, didn’t want to could the Scottish Government decide they wanted to press charges? Or is it down to the Crown Office and Procurator Fiscal ?”
Police response: “I would be able to attend and provide advice directly to the victims regarding the full process, should they decide to report, however, I can’t give the victims hypothetical advice.”
McKinnon sent another flurry of emails to police the next day saying she had questions on behalf of the potential victims.
The police replied: “Providing an email response to any queries the victim(s) have is not how I would conduct this.”
MacKinnon replied: “I realise I am being very cloak and dagger about this, but we feel that, for the moment, if we can provide some written responses that would be most helpful at this stage. Your offer of face to face contact I am sure, if we go down the route of reporting, will be welcomed, but at the moment the final outcome of the investigation has not been found and the decision for next steps also cannot be made.”
The email correspondence indicates the police officer sought advice from a superior officer over concerns a face-to-face meeting with victims was being blocked. The officer replied: “I have sought advice from Detective Sergeant (redacted) as this is not how Police Scotland would ordinarily interact with victims and warned her over “the levels of discussions taking place”
The email flurry ended with MacKinnon informing the police she was going on annual leave and they should contact Richards, her boss. The email exchanges were not provided to the Holyrood Inquiry who carried out an investigation into the governments handling of the case. But the Inquiry heard evidence from both civil servants who said police involvement had not been the “intention” of the complainants initially.
Murdo Fraser MSP, who was on the inquiry, commented: “This information reveals another glaring flaw in the government’s disastrous handling of sexual harassment complaints against Alex Salmond. Despite all the grave mistakes made during the whole sordid affair, not one person has been sacked. Nobody has accepted responsibility. Nobody has been held accountable.”
Sources close to Alex Salmond said: “These are extraordinary revelations about a cloak and dagger operation being mounted by the Scottish Government. The emails add to the already huge ammunition in Alex Salmond’s legal case against the Scottish Government. since they indicate there was a secret operation suggesting extreme prejudice against Alex Salmond and substantial malice on behalf of Scottish Government officials.”
In her evidence to the Holyrood Inquiry Evans said: “We took advice from Police Scotland because we wanted to ensure that the procedure was appropriate and sympathetic, and that it was effective in terms of encouraging people to use it. The police’s view, which we adhered to and which is reflected in the procedure, is that the process must be led by the victim – by the people who are bringing concerns or complaints. If they wish to go to the police, they are at liberty to do so at every stage in the operation. However, as our investigation… reached its conclusion, the Scottish Government (Evans) informed by legal advice (that would be her unreported meeting with the Lord Advocate, on 22 August 2018) decided that three of the complaints would not be passed on to appropriate support services as a first option, but would be be referred to Police Scotland without informing the complainants.” Evans should have told the Inquiry: “I ignored the advice from police and presided over a monumental cock-up which cost the Scottish taxpayer nearly £2million.”
About Judith MacKinnon
In the summer of 2017 Leslie Evans who had no personnel management qualifications needed to strengthen her team. She recruited Judith Mackinnon, an experienced human resources manager, to a newly created, (very well remunerated) position. This is the same person that was previously Head of Human Resource Governance at Police Scotland. Hardly a recommendation for employment in the Scottish Government given the many scandals in the force in the years she was in post. See her record here:
The full version of events is here. It is very long and I am adding information to it as it comes to hand. Best to have a cup of coffee and a biscuit before/ during the read.