IN DEFENCE OF REALITY

As part of their coalition with the Green Party, the Scottish Government have pledged to introduce gender self-identification within the first year of the present Parliament.

For the reasons I have previously given, this means that men will legally become women just by saying they are, and women will become men just by saying they are.

This will not be regarded by the Scottish Government – or by the police or Crown or Scottish courts – as a legal fiction, but as the simple expression of reality.

We as a society will be expected to believe that people can literally change sex, and there will be sanctions if we don’t.

If the Scottish people do not rise up against this and stop it, we will all have surrendered to collective insanity.

I have been able to tell a girl from a boy and a man from a woman for the entire period of my living memory, a period now extending to well over fifty years.

The evidence of my own eyes and ears over that same period tells me that everyone else who is not in some way physically or mentally impaired has the ability to do it too.

I am confident that the ability that I know I have is one shared by the entire human species.

I am confident that this is so because being a girl or a boy, a woman or a man, must be one of the most overdetermined realities that there can possibly be for human beings.

It would make no sense if we could not recognise that reality in one another, instinctively, as a trait of being human, and without the need for active thought or any training or education of any kind.

It is as fundamental, and as little requiring of justification or explanation, as the ability to recognise the face of your own mother or father or sister or brother out of every other human being on the whole planet.

I say that the ability is overdetermined because if I search my mind, I can think of myriad factors that must enter into it, and I’ve listed some of the obvious ones previously, but if you ask me for some “theory” of how I am able to do it, I can only shrug my shoulders.

It doesn’t matter at all to me how I am able to do it, just that I can, and that it is one of the most fundamental realities on which I base my life.

If the Scottish Government, or anyone else, have a “theory”, or offer to produce an “expert” to tell me I can’t do this, then I am as sure as I am of anything in my life that I am right and they are wrong.

So when they tell me that what I know is a man is in fact a woman or that what I know is a woman is in fact a man, I know that they will be lying to me, trying to get me to accept as a fact something I know to be a fiction.

If the proposed legislation is allowed to pass and Nicola Sturgeon self-identifies as a man, gets a gender recognition certificate to that effect and uses that to get a birth certificate that says she is of the male sex, I know as surely as I know anything that this will be a lie.

If John Swinney self-identifies as a woman and goes through the same process to legally change to the female sex, I know as surely as I know anything that this too will be a lie.

No more nor less than The Party in Orwell’s Nineteen Eighty-Four, the Scottish Government will be imposing on me a version of “reality” that I – and they – know to be an utter fiction.

No more nor less than The Party in Nineteen Eighty-Four, they will be seeking to punish me, and everyone else who knows what reality is, by charging us with “hate crimes”.

It is completely irrelevant to me what their motives are for doing this.

There is no motive in the world worth surrendering reality for, and this is for a simple reason, one that Orwell and his protagonist Winston Smith understood all too well.

If even just once you are prepared to surrender reality and choose to believe in something you know to be false – for any reason, and with any motive – you have lost yourself, and you’ll never find yourself again.

I desperately hope that my fellow Scottish citizens, men and women both, will rise up in defence of reality and kill this insanity stone dead.

But if they don’t, let me use the privilege I have of putting something on the public record, here and now, for the many thousands of readers of this blog.

Boys are not girls, and girls are not boys, no matter how much they think or say they are.

Men are not women, and women are not men, no matter how much they think or say they are.

Males are not females and females are not males, no matter how much they think or say they are.

“Gender identity” is not real.

Sex is not a choice.

I’ll defend reality till the day I die, and they can lock me up if they want to.

THE FABIANI WHITEWASH AND THE COURT ORDER

I’ve been asked if I can make still clearer why it’s a big deal that the Fabiani Report has shown such utter contempt for the truth, as detailed in my last post.

The court order

The following is part of the court order, called an “interlocutor”, made by Lord Pentland at the Court of Session on 8 January 2019, when the court granted Alex Salmond’s application for judicial review against Leslie Evans and the Scottish Government:

“The Lord Ordinary … finds and declares that the decisions of the first named respondent, viz. Leslie Evans … are unlawful in respect that they were taken in circumstances which were procedurally unfair and in respect that they were tainted by apparent bias by reason of the extent and effects of the Investigating Officer’s involvement with aspects of the matters raised in the formal complaints against the petitioner prior to her appointment as Investigating Officer in respect of each of those complaints…” [my emphasis]

In other words, the one specific reason given by the court for finding the actions of Leslie Evans and the Scottish Government unlawful was that the Investigating Officer in the formal complaints of Ms A and Ms B involved herself in matters raised by the formal complaints before she was appointed to investigate them.

That is to say, the one specific reason the Fabiani inquiry was given when it was set up to investigate the unlawful behaviour of Evans and the Scottish Government was the prior involvement of the Investigating Officer, Judith Mackinnon, in the formal complaints of Ms A and Ms B.

But, instead of investigating that prior involvement in the case of Ms B, the Fabiani inquiry has decided that one vital part of the prior involvement just didn’t happen.

The facts, again

It is an established fact that Ms B made her formal complaint directly to Judith Mackinnon by email at 1.56 pm on 24 January 2018.

The Fabiani Report acknowledges this fact:

24 January 2018: … Ms B’s formal complaint is … received by email.”

It is also an established fact that Judith Mackinnon, who later acted as Investigating Officer, had prior involvement with Ms B on 23 and 24 January 2018.

Again, the Fabiani Report acknowledges this fact:

23 January 2018: … A call is arranged between [Mackinnon] and Ms B for the following day.

24 January 2018: The Head of People Advice [Mackinnon] … and Ms B speak on the phone. Ms B’s formal complaint is subsequently received by email.”

So this is a prime example of exactly the prior involvement set out in Lord Pentland’s interlocutor – you know, the one that the whole Fabiani inquiry is based on.

It’s a prime example of the unlawful conduct that the whole Fabiani inquiry is supposed to be investigating.

But instead of investigating it, they find, as a fact, that it just didn’t happen.

They find that there was no prior involvement on 23 and 24 January 2018 because Judith Mackinnon was somehow, magically, appointed as Investigating Officer before Ms B’s formal complaint was ever received:

“The Director of People [Nicola Richards] appointed the Head of People Advice [Judith Mackinnon] as the Investigating Officer under the procedure. This appointment was made on 23 January 2018 in relation to the complaint made by Ms B.”

By finding an obvious falsehood as a fact, they avoid any engagement whatsoever with the very unlawfulness they’re supposed to be investigating.

This is in blatant contradiction of Lord Pentland’s order.

By a Committee of the Scottish Parliament.

In a democracy governed by the rule of law, that should have some kind of consequence.

THE FABIANI WHITEWASH

If you want to know how utterly bereft of truth the whole political process now is in Scotland you need look no further than the Fabiani Whitewash – aka the “Report of the Committee on the Scottish Government Handling of Harassment Complaints”.

One of the many reasons why the Sturgeon clique had to concede Alex Salmond’s judicial review was that Investigating Officer Judith Mackinnon had effectively appointed herself to that role in the complaint of the individual known as Ms B.

This was in the clearest possible breach of the Scottish Government’s own procedure.

It’s just one of the many scandals in the process that ended up costing the Scottish taxpayer well over a million pounds and counting but it’s self-evidently an important one.

It’s one that should have been investigated with great rigour by the Fabiani inquiry so that clear findings could have been made and responsibility apportioned.

Instead, they’ve found the most contemptible way of avoiding any contact with the truth.

Counsel’s opinion

The Scottish Government retained two QCs and and at least one junior counsel for external legal advice and representation throughout the process of the Salmond judicial review. In the lead was Roddy Dunlop, QC.

Dunlop is now Dean of the Faculty of Advocates and has for a long time been one of the most sought-after and respected advocates in Scotland.

In an increasingly horrified series of legal opinions leading up to the final concession of the judicial review, Dunlop charted the ongoing failure of the Sturgeon clique, most prominently Permanent Secretary Leslie Evans, to disclose to their legal team anything close to the full horrors of what they had done.

One such opinion came on 19 December 2018 when it had at last come to light that Investigating Officer (IO) Judith Mackinnon had not only had multiple inappropriate prior contacts with complainers Ms A and B but had effectively appointed herself IO as soon as Ms B’s complaint was received.

I’ll let you read the opinion for yourself. It’s admirably clear and no reader of it can be left in any doubt as to what their own senior counsel thought of the Scottish Government’s “alarming” conduct:

An “unstatable” defence; the deepening “dismay” of counsel; “unexplained” and “frankly inexplicable” failures to disclose vital and obviously relevant documents; the “extreme professional embarrassment” suffered by counsel “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.”

And I’ll just remind you here that not a single person in the Scottish Government has resigned, nor has the Fabiani Whitewash even remotely suggested that anyone should resign, over this state of affairs.

But let’s go to the facts themselves:

One of the “alarming” disclosures that had finally been made to Dunlop, the concealment of which to that point was “unexplained” and “frankly inexplicable”, was that less than half an hour after receiving Ms B’s formal complaint by email on 24 January 2018, Judith Mackinnon was writing to Ms B, and arranging to meet her as Investigating Officer without ever having been appointed to that position as required by the procedure.

For the avoidance of doubt, Ms B submitted her formal complaint by email to Mackinnon at 1.56 pm on 24 January 2018.

Less than half an hour later, at 2.23 pm on 24 January 2018, Mackinnon emailed Ms B, acknowledging the complaint and discussing arrangements for meeting her as Investigating Officer.

This is what paragraph 10 of the procedure says about the appointment and status of the IO:

“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 Investigating Officer to deal with the complaint. That person will have had no prior involvement with any aspect of the matter being raised.”

The Scottish Government’s Director of People in January 2018 was Nicola Richards. Only she had the authority to appoint an Investigating Officer.

And of course that authority could only be exercised after a formal complaint was received.

No such appointment was made by Nicola Richards on 24 January 2018 – or ever.

Thus, as Dunlop points out in his opinion (having only just discovered these facts):

“The complaint had only just been made. No one had appointed an IO for this complaint. The IO has effectively appointed herself in that regard.”

This was just one of the bombshell disclosures finally made at this point that would very soon make counsel realise that the Scottish Government’s case had been “unstatable” from the outset.

It was, however, a self-evidently important one.

The Leslie Evans version

Reproduced exactly below (with my own gloss in square brackets) is how the Scottish Government – which means, in effect, Leslie Evans – tried to recast what you’ve just read above in their Statement to the Fabiani Whitewash.

Note that they can’t even get their own terminology right. The procedure provides for an “Investigating” — not “Investigation” — Officer:

“Ms B notified the Director for People [Richards] on 23 January 2018 of her decision to make a formal complaint. The Director for People [Richards] then contacted the Head of People Advice [Mackinnon] to inform her and to agree that the Director for People [Richards] would notify Ms B that the Head of People Advice [Mackinnon] was conducting the investigation and that she would be in contact. The Investigation [sic] Officer [Mackinnon] contacted Ms B to let her know that the Director for People [Richards] had informed her of Ms B’s intention to make a formal complaint. The Head of Branch People Directorate 3 [I have no idea who, or what, this is] then set up a telephone call for Ms B to speak to the Investigation Officer [Mackinnon]. Ms B followed this call up by submitting her complaint by email.”

There’s the trademark Evans obfuscation and use of ludicrous job titles to try to disguise the facts but if you struggle your way through it, you’ll see that the key trick is pulled here:

“The Investigation Officer contacted Ms B …”

When Mackinnon contacted Ms B, prior to the making of her formal complaint, “to let her know that [Richards] had informed her of Ms B’s intention to make a formal complaint”, she was not the Investigating Officer.

That is a brazen and quite deliberate Scottish Government lie.

It is simply impossible, as a matter of the most obvious fact, for Mackinnon to have been the Investigating Officer of Ms B’s formal complaint until that formal complaint was submitted, and at the time of this contact no such complaint had been submitted.

What Mackinnon was in fact doing was having “prior involvement” with Ms B which, along with many other breaches of paragraph 10, rendered her purported appointment later as Investigating Officer unlawful and the Scottish Government’s case at judicial review “unstatable”.

That is made as clear as can be in Roddy Dunlop’s opinion of 19 December 2018. It was one of the factors that forced Evans and the rest of the Sturgeon clique into finally accepting defeat, and therefore one of the factors which gave rise to Fabiani’s Committee in the first place.

So the attempt by the Scottish Government here to deceive Fabiani’s Committee should be obvious.

Anyone who looks at it with any degree of care can see through it immediately, let alone a representative group of Members of the Scottish Parliament who have been closely scrutinising the relevant issues for months, and have highly competent and professional specialist staff to assist them in the task.

Well, let’s see.

The standard of competence and integrity of the Fabiani Whitewash

These are the findings of the Fabiani Whitewash on Mackinnon’s unlawful “prior involvement” with Ms B and her effective appointment of herself as Investigating Officer, in the clearest possible breaches of paragraph 10 of the procedure:

“Ms A made a formal complaint on 16 January 2018 and Ms B on 23 January 2018. These were made to the Director of People” [my emphasis].

“The Director of People appointed the Head of People Advice as the Investigating Officer under the procedure. This appointment was made … on 23 January 2018 in relation to the complaint made by Ms B” [my emphasis].

Er, what?

How could Ms B’s complaint be made to Richards on 23 January 2018 when it was not made (to Mackinnon) until 1.56 pm on 24 January 2018?

How could Mackinnon be appointed Investigating Officer of Ms B’s complaint on 23 January 2018 when that complaint was not made until 1.56 pm on 24 January 2018?

From a Committee of the Scottish Parliament charged with the careful and diligent conduct of one of the most important investigations in the whole history of the Parliament, answer comes there none.

All we get is this timeline in an Appendix to the Report:

23 January 2018: Ms B notifies the Director of People of her intention to make a formal complaint.

The Head of People Advice is appointed Investigating Officer under the procedure for the complaint of Ms B. A call is arranged between her and Ms B for the following day.

24 January 2018: The Head of People Advice, acting as Investigating Officer, and Ms B speak on the phone. Ms B’s formal complaint is subsequently received by email.

26 January 2018: A meeting between Ms B and the Head of People Advice, acting as Investigating Officer, is held for the formal interview on Ms B’s complaint.

This is Orwellian doublethink hiding in plain sight.

I’m sure I don’t need to point it out by now but I will anyway, just in case any Fabiani Whitewash MSPs or staff are reading this (though even then, frankly, I’m not confident they’ll grasp it).

The Head of People Advice can’t have been appointed as Investigating Officer of Ms B’s complaint on 23 January 2018 because Ms B didn’t make her complaint until 24 January 2018.

The Head of People Advice can’t have been acting as Investigating Officer when she spoke to Ms B on the phone because it was only subsequently that Ms B made her complaint.

When a Committee of the Scottish Parliament specifically convened for the purpose can’t even get its most basic and important facts right, it’s clear that the Scottish people need to look elsewhere for some person or body that can get to the truth.

We need a judicial inquiry

The writer and academic David Lodge once described Jacques Derrida’s ludicrous poststructuralist “theories” of “deconstruction” as offering to impressionable young college students “the thrill of sawing through the branch you’re sitting on”.

We know of course that Sturgeon and her clique are in thrall to such post-truth “theories” because they lie behind the reality-denying “gender identity” nonsense, and much else, that they are about to try to impose yet more deeply on the Scottish people.

It’s disappointing to say the least that the whole Scottish Parliament are apparently ready and willing to saw through the branch they’re sitting on too.

The Fabiani Whitewash is a bad joke, and all that is said above is but one of myriad examples, some of which I’ll say more about in future posts.

We desperately need a judicial inquiry into what was done to Alex Salmond and why.

LIZ LLOYD’S INTERFERENCE IN THE SALMOND INVESTIGATION: WHAT IT MEANS FOR THE BIGGER PICTURE

Text messages now published in full by the Scottish Parliament show conclusively that Liz Lloyd, Special Adviser and Chief of Staff to Nicola Sturgeon, did interfere in the Salmond complaints process, contrary to vehement denials made on Lloyd’s behalf in March this year.

Lloyd has previously claimed that she only suspected there may be a formal complaint against Salmond some time in March 2018, that she did not know the full details of any complaint, and that she did not tell Sturgeon of her suspicions.

But the messages strongly suggest that Lloyd knew about the Salmond complaints in early February 2018 and that she was acting on behalf of her boss, the First Minister, when she interfered in the complaints investigation at that time.

Sturgeon herself told the Scottish Parliament that she knew nothing of the complaints until 2 April 2018 but later had to admit in her evidence on affirmation to the Fabiani Committee that she had in fact discussed them at a meeting on 29 March 2018, a meeting that she claimed had slipped her mind when she gave false information to the Parliament.

The messages also contradict the evidence to the Fabiani inquiry of top civil servant Barbara Allison, who swore on oath that she had no involvement in the Salmond investigation beyond “early contact” with the complainers in November 2017.

As the messages make quite clear, Allison was still playing an active and important role in the Salmond investigation in February 2018.

The background to the February text messages

In January 2018, Judith Mackinnon was appointed as Investigating Officer for the Salmond complaints. Mackinnon was then Head of People Advice, a very senior position in the Human Resources (HR) department of the Scottish Government. She was personally selected for the role of Investigating Officer by Permanent Secretary Leslie Evans, a selection that has, among many other things, cost the Scottish taxpayer well over a million pounds to date, and will probably cost a good deal more in the future.

The complaints being investigated were those of civil servants Ms A and Ms B, both of whom later became complainers (under different letters of the alphabet) in Alex Salmond’s criminal trial. The anonymity of Ms A and Ms B is protected by two separate court orders and to disclose the identities of either would be a serious contempt of court.

On 5 February 2018, a Ms X was interviewed by Mackinnon’s investigation on the basis that she might be able to corroborate aspects of the complaints of Ms A and Ms B. Although she ultimately refused to provide information to the Scottish Government investigation, Ms X later became a complainer herself in the criminal trial (again, under a different letter of the alphabet). Her anonymity too is thus protected by a court order.

In common with other Salmond complainers, and on the basis of information which she herself has chosen to make public, Ms X was self-evidently someone who was close to Liz Lloyd and by extension to Nicola Sturgeon.

Liz Lloyd’s first text message

On 6 February 2018, Liz Lloyd texted Barbara Allison as follows:

“[Ms X] will ask to see you today. Best outcome RE her is that as HR told her yesterday they didn’t need her to corroborate anything and as she told them she doesn’t want to tell her story…that by the end of today HR decide they don’t need to speak to her and cancel it. She won’t say no because she doesn’t want it to look like [she] wouldn’t testify.”

I’ll unpack that message in much greater detail below, but you won’t need me to tell you what it means in essence:

The First Minister’s Chief of Staff who, like her boss, was supposed to know nothing about the Salmond investigation, was directing a senior civil servant in the outcome she – and by clear implication, her boss – wanted to achieve regarding the evidence of a potential witness.

And the outcome she wanted for Ms X was one where Mackinnon’s investigation of her evidence was shut down forthwith – “cancel it,” Lloyd says, “by the end of today”.

On 18 March last year, after fragments of the now published messages were made public, Ms X chose to issue a statement through Scottish Government mouthpiece Rape Crisis Scotland. In that statement, she and Liz Lloyd sought to explain this extraordinary intervention by the First Minister’s Chief of Staff in the Salmond investigation process.

(In a twist appreciated by fans of irony, Rape Crisis Scotland sent out an initial version of the statement which unwittingly disclosed Ms X’s identity to all its press recipients, then issued a second, identity-free version and asked all recipients of the first version to destroy it.)

Ms X began by stating that claims of “interference” by Liz Lloyd in the Salmond process were “fundamentally untrue” and that such claims “deliberately misrepresented” the content of the messages.

Well, we’ll go on to the other messages shortly. But let’s just pause here and consider Liz Lloyd’s message all on its own.

She tells Allison in terms what the “best outcome” of this part of Mackinnon’s investigation process should be.

She tells Allison in terms that she wants this part of the investigation cancelled that very day.

And she is the First Minister’s Chief of Staff, with all the power to influence and direct events that the title carries with it.

If that’s not interference in the Salmond investigation, even in the post-truth world of the Scottish Government and Rape Crisis Scotland, then I truly don’t know what is.

The world according to Ms X

Ms X’s public statement continued:

“In January 2018 I was approached by Scottish Government HR regarding an investigation they were undertaking into a complaint about Alex Salmond’s behaviour during his time as First Minister.

“I had been named as someone who experienced such behaviour in statements obtained during the course of HR’s investigation.

“After discussion with HR, I decided I did not in any way wish to share with them my own personal experiences, however I also did not want to obstruct an investigation. I did not know if I was obliged to cooperate after being asked to.

“I decided to raise the matter with a trusted senior person in government, Liz Lloyd, to gain advice and an understanding of my obligations.

“I was extremely conscious of the sensitivity of the investigation and I, therefore, did not tell Liz who the complaint was from, who it was about or the nature of the complaint.”

Let’s pause again there. I’ve expressed my incredulity at this last claim in some detail in a previous post, and if it’s possible, I’m even more incredulous now that we have Lloyd’s full message.

We’re asked to believe that Liz Lloyd, a “trusted” colleague of Ms X, who is self-evidently herself a senior figure in the Scottish Government, was both willing and able to send the message above – with all its particular details of the investigation and its specific mention of corroboration of ongoing complaints – without finding out from Ms X any details at all of what she was getting herself into or checking in any way whether her intervention in this mystery investigation was even remotely appropriate.

If that is true, it would be bad enough and, in any organisation other than the Scottish Government, probably enough in itself to get Liz Lloyd disciplined or sacked, but the merest common sense, and everything that now follows, tells us surely that it just can’t be true.

Ms X’s statement continued:

“I informed her I had been approached by HR in relation to a current investigation. I said I had been asked if I wanted to make a complaint and made it clear to her I did not want to, but I was concerned that if I didn’t I may be impeding an investigation.

“She offered to convey my concerns and what I wanted to happen to an appropriate senior civil servant, who was the most appropriate person to discuss the issue with. I agreed to this course of action. This was not ‘interfering’ but acting in line with my wishes.”

This, then, is the standard of logic and rationality at the uppermost echelons of the Scottish Government. The clearest possible interference by Lloyd in Mackinnon’s investigation – interference specifically labelled as such by Mackinnon herself, as we’ll come to shortly – is not in fact interference, according to Ms X, because it was carried out “in line with my wishes”.

Next time I have a client charged with theft, remind me to tell the court that it can’t be theft because he was only acting in line with his pal’s wishes.

Enter Barbara Allison

Barbara Allison is the senior civil servant to whom Ms X refers in her statement as “the most appropriate person to discuss the issue with”.

Regular readers of this blog will be all too familiar with Allison and her doings but for new readers she’s probably best known in the present context as the former director of HR who was appointed in secret by Leslie Evans in November 2017 to provide “pastoral care” for potential complainers, and as the person to whom Evans sent her infamous text on the day the Salmond judicial review was conceded:

“Thanks Barbara—battle maybe lost but not the war.”

On receiving Lloyd’s message about Ms X on 6 February 2018, Allison forwarded it on to Mackinnon, along with her own message:

“[Ms X] is coming to see me at [time redacted]. What would you want me to tell her? To corroborate info but agree it can not be used in info sent to him? Or should we ‘stand her down’? B x”

Let’s start with the last sentence of the message, and that highly significant use of “we”.

There is simply no ambiguity here. “We” in this context must comprise Allison and Mackinnon at the very least, and I’d say it extends pretty clearly in the context to the whole of Mackinnon’s investigative team, however large or small that may have been.

When Allison asks whether “we” should “stand her down”, she is not – and cannot be – asking the question as a disinterested third party offering pastoral support to Ms X in a process in which she is playing no other part.

Plainly, unambiguously, Allison is positioning herself as part of Mackinnon’s investigative process, and is asking Mackinnon, as a player in that investigative process, what “we” should do.

It is in that unambiguous context that Allison asks Mackinnon her two earlier questions, and makes her own very specific suggestion of what “we” should tell Ms X about how her evidence will be used:

“To corroborate info but agree it can not be used in info sent to him?”

The “him” referred to here is Alex Salmond, the subject of the complaints being investigated, as Ms X was by her own admission well aware.

Given then that the message being discussed – the one directing Allison as to the “best outcome” – had come not from Ms X herself but from Liz Lloyd, and given that, according to Ms X, Lloyd had no idea of the context in which she was seeking that outcome, might we not expect some intimation of that in this message from Allison to Mackinnon?

Might we not expect Allison to try to to ensure that Lloyd continued to be shielded from this highly confidential knowledge in any further action Mackinnon might take or any reply she might make to Lloyd?

At the very least, might we not expect some kind of warning from Allison to Mackinnon of the need to keep from Lloyd and her boss at all costs the identity of “him”, of the nature of the complaints for which Ms X was being asked to “corroborate info”, and of the proposed agreement with Ms X that such “info”, once used, would not be “sent to him”?

Of course, there is no such intimation or warning, because the idea that Lloyd was not already aware of every salient detail of what this process was, and against whom it was being directed, would have been as ludicrous then to Allison and Mackinnon as it is to the rest of us now.

Apart from anything else, they would both surely have assumed, as any rational person would assume, that the First Minister’s Chief of Staff would not be getting involved in such a momentous and sensitive investigation unless both she and her boss were fully aware of what they were asking of Allison and Mackinnon, and the full context in which they were asking it.

That they were aware of this is yet further evidenced by Mackinnon’s response.

What Allison said on oath

Before coming to that, however, let’s pause again to remember what Allison told the Fabiani inquiry, on oath, on 15 September 2020 about her role in the Salmond investigation:

“I had some early contact with the two individuals who ultimately became complainants under the policy for the handling of harassment complaints. Other than that early initial contact, I had no involvement in the investigation.”

And again on 27 October 2020:

“To the extent that it might be relevant to today’s session, although I had early and limited contact with the complainers, I was not involved in the investigation process.”

I’m sure you don’t need me to tell you that this evidence, given on oath, is directly contradicted by the terms of Allison’s own message above.

Contrary to her evidence to the inquiry, Allison was involved in the investigative process long after her “early contact” with the complainers Ms A and Ms B.

What is more, her involvement was not in some trivial matter of procedure or “pastoral care” of a complainer.

As is set out in black and white above, Allison was involved on 6 February 2018 in deciding, along with the Investigating Officer, what “we” should do about a potentially important witness whose evidence the First Minister’s Chief of Staff was overtly seeking to shut down and “cancel”.

In her October session of evidence – a session convened in part so that she could now be allowed to “remember” the “battle maybe lost but not the war” text which she had unaccountably denied ever receiving in her first session of evidence to the inquiry – Allison had the following exchange with MSP Jackie Baillie:

Jackie Baillie:… Have you ever expressed concern, or had concerns expressed to you, about interference by special advisers in the civil service complaints process?

Barbara Allison: Could you ask me that again?

Jackie Baillie: Have you ever expressed concern, or had concerns expressed to you, about interference by special advisers in the civil service complaints process?

Barbara Allison: During the investigation, there was some correspondence between me and some other people about somebody who was perhaps going to give evidence or be a witness. In my pastoral care role, I was asked whether I could offer support at that time. That is probably what you are referring to.

Jackie Baillie: I will leave it there for now. Thank you.

I don’t know what Jackie Baillie was referring to, but I do know it can’t have been Allison’s actions on 6 February 2018, at least if her answer to Baillie was truthful.

Because to describe Allison’s actions on that day as no more nor less than giving “pastoral care” and “support” to “somebody who was perhaps going to give evidence or be a witness” is to give up all belief that the English language actually means anything.

It is, in short, to enter the wacky, black-means-white world of the present Scottish Government.

Mackinnon’s response to Allison

Mackinnon responded to Allison that same day, 6 February 2018, as follows:

“[Ms X] did not tell us she didn’t want to tell her story or participate. She told us she was concerned and needed to consider. Liz interference v bad – promoting a climate that doesn’t encourage people to be supported to speak out. This contradicts the FMs own public statements about sexual harassment and doesn’t allow Perm sec to fulfil her duty of care. Bottom line is we can’t make her talk to us – but at least we needs reason why she won’t. Not for us to stand her down – she needs to decide she’d rather not and tell us. Think we need her to give us on writing that she doesn’t want to take part. Grrr. Jx”

If we were in any doubt about how Mackinnon viewed Lloyd’s extraordinary intervention, that last “sentence” is pretty unmissable:

“Grrr.”

So let’s unpack the rest.

Mackinnon begins by flatly contradicting Lloyd’s version of Ms X’s meeting with “us” – presumably Mackinnon herself, and one or more other members of her investigative team.

According to Mackinnon, and quite contrary to Lloyd’s message, Ms X did not tell the investigation that she did not want to participate but only that she needed to consider. For this reason, and others to follow:

“Liz interference v bad.”

I don’t often agree with Judith Mackinnon but she’s bang on the money here. It’s outrageous for the First Minister’s Chief of Staff to be interfering in this way with any ongoing HR investigation, let alone the uniquely significant and sensitive Salmond investigation.

Nor is Mackinnon in any doubt that by seeking overtly to shut down this area of Mackinnon’s inquiry, Lloyd is “promoting a climate that doesn’t encourage people to be supported or speak out”.

This is of course the very opposite of what Lloyd and her boss have always proclaimed and continue to proclaim about their motives and actions throughout the whole Salmond business, a point that Mackinnon does not miss either:

“This contradicts the FMs own public statements about sexual harassment and doesn’t allow Perm sec to fulfil her duty of care.”

For me at least, the subtext of this is also quite clear. Mackinnon assumes, as she has every right to assume, that Lloyd would not be taking this extraordinary course if she did not have her boss’s approval for doing so. Hence, it is not just a matter of Lloyd herself behaving improperly but of the “FM” having her own statements contradicted and the “Perm sec” having her duty of care thwarted by the very person charged with acting on the First Minister’s behalf.

So for readers who keep in mind the broader context of this remarkable saga, and who have read some of the other posts on this blog where I go on at length about the determination of the First Minister, her Chief of Staff and her Permanent Secretary to get Alex Salmond, this attempt by two of the three major players to shut down evidence potentially damaging to Salmond will – and should – require to be explained before we continue.

The broader context

In my view, the war fought against Alex Salmond by Nicola Sturgeon and her powerful clique of insiders has to be seen in distinct chapters to be properly understood.

The first relevant chapter for present purposes covers the period of the Mackinnon investigation from January 2018, when Ms A and Ms B made their formal complaints, to August 2018, when Evans issued her report.

For most of that period, the Sturgeon clique had two equally important and mutually compatible goals: (1) to get Salmond via the complaints of Ms A and Ms B; and (2) to keep Sturgeon herself entirely off the record as playing any part whatsoever in what was being done to Salmond with her full knowledge and wholehearted approval.

(Veteran readers might remember that my very first post on this blog detailed the process by which the whole complaints procedure was “recast” on Sturgeon’s behalf in early December 2017, precisely to remove Sturgeon from the central role she had played in previous drafts of that process and thus to insulate her as completely as possible from responsibility on the record for what was being set up for use against Salmond.)

Throughout most of this first chapter, and certainly during February 2018 when the events detailed in this post were taking place, the last thing Sturgeon or Lloyd wanted was for anything to take place on the record in the Mackinnon investigation that would connect the complaints being made in any way to them. Just as important was to make sure that Alex Salmond never got to hear of any such connection, on or off the record.

I’m very limited in what I can say about this for obvious reasons but self-evidently, the involvement of Ms X on the record in the investigation process presented such a danger.

Self-evidently, it was not, and is not, open to the average Scottish Government employee to approach the First Minister’s Chief of Staff for help as Ms X was able to do, nor to secure the kind of extraordinary intervention on her behalf that Ms X was able to command. It’s a mere statement of the obvious that Ms X was not an average Scottish Government employee.

The second relevant chapter begins in August 2018, when Salmond launched his judicial review and extends at least until Salmond was charged by the police in January 2019, within a couple of weeks of winning his judicial review and humiliating the Scottish Government.

During that period, for reasons which I’ve detailed at length elsewhere, getting Salmond at all costs became the only goal, previous concerns about connections of complainers to Sturgeon herself were all but abandoned, the plan to secure anonymity was hatched, and some of the most powerful people in Scotland became Salmond’s accusers.

Ms X was one of the accusers added during that chapter.

Mackinnon’s response to Allison (continued)

Mackinnon’s response to Allison continues:

“Bottom line is we can’t make her talk to us – but at least we needs reason why she won’t. Not for us to stand her down – she needs to decide she’d rather not and tell us. Think we need her to give us on writing that she doesn’t want to take part.”

And then, as we’ve seen, Mackinnon ends with probably the most eloquent comment she ever made on the whole sorry process:

“Grrr.”

The “bottom line”, as Mackinnon makes clear, is that her investigation is not going to do Lloyd’s bidding and let Ms X off the hook of being responsible for her own decision not to participate.

Further, Mackinnon will not allow Lloyd’s false version of Ms X’s interview on the previous day to stand and will insist on Ms X giving her own reasons in writing for now refusing to co-operate.

Allison’s meeting with Ms X

According to Ms X’s public statement issued in March last year, her meeting with Allison – which, remember was scheduled for 6 February 2018, the same day these messages were exchanged – then took place as follows:

“I then met with the senior civil servant and relayed my extreme apprehension about being involved in the investigation.

“They offered me reassurance that should I decline to cooperate that I would not be impeding the investigation.”

This surely can’t be right. Mackinnon had left Allison in no doubt whatsoever that she disapproved strongly of the behaviour of both Ms X and Liz Lloyd and regarded what they were now seeking to achieve as a contradiction of the First Minister’s own position and even a thwarting of the Permanent Secretary’s duty of care.

The idea that Allison would, that very same day, agree with, and offer “reassurance” about, the very thing that had driven Mackinnon to the point of growling in print, is surely preposterous.

How it ended

There is then a break in the published messages before they resume two days later, on 8 February 2018, with Mackinnon to Allison:

“Still not heard from [Ms X] – so proposing to send her this – As I have not heard further from you in relation to the investigation, I will take that as an indication that you do not wish to engage further with the process. – ok B?”

If there is any truth in Ms X’s version of events above, this would surely then have been the time for Allison to admit to Mackinnon that she had in fact already reassured Ms X that her refusal to cooperate would not impede the investigation and that this was why Mackinnon had not heard further from Ms X.

Allison’s reply was, however, very different: “Can you hold off a bit? Liz is getting me you a number to call her.”

“Will do,” Mackinnon replied.

“Ta. B,” texted Allison. Then, a bit later: “Hi. [redacted] is texting me now with her number apparently. Bx”

And, finally, Mackinnon to Allison: “Standing by. X”

And that’s as much as we know. It’s clear that Lloyd’s extraordinary interference on behalf of Ms X was continuing, and that the conduit for that interference continued to be Allison, who for her part continued to be thoroughly involved in this aspect of the investigation.

But it’s very far from clear why this was happening or what happened next or how the whole matter came to be resolved. Surely, though, this final sentence from Ms X’s statement can’t be all there was to it:

“I conveyed my decision to HR and had no further part in the process.”

And of course this evidence, on oath, from Barbara Allison continues to be as contrary as ever to the facts:

“I had some early contact with the two individuals who ultimately became complainants under the policy for the handling of harassment complaints. Other than that early initial contact, I had no involvement in the investigation.”

What it means

There is much of importance to be drawn from this episode and I hope I’ve made most of it clear in what I’ve written above.

But, at least for me, the overarching meaning of it is the meaning which looms over almost everything I’ve written about the Salmond complaints on this blog.

The episode is just one more piece in the 1,000 piece puzzle that, when fitted together, provides the most compelling evidence that Nicola Sturgeon knew about, wanted, and directed, the campaign to get Alex Salmond, and that she did so from the very start.

THE CROWN CAME FOR CRAIG MURRAY

I’ve copied the press release below from the Wings Over Scotland website. The selective prosecution of Craig Murray by the Crown Office and Procurator Fiscal Service (COPFS) is another shameful chapter in their history of incompetence and bad faith.

Legal precedent will be set tomorrow as Craig Murray will be the first person to be imprisoned on the charge of jigsaw identification in the UK, and indeed in the entire world. Scotland’s second most senior judge, Lady Dorrian, sentenced Murray to 8 months of incarceration following a contempt of court charge for ‘jigsaw identification’ relating to the trial against Alex Salmond.

In May Lady Dorrian said that in her view Murray had intended to release identities of Salmond’s accusers. Mr Murray has always denied any intent to identify and that anybody was actually identified. Murray had not directly identified any of the accusers in the Salmond trial, but Dorrian argued identification may be possible if his reporting of the case was read in connection with other materials in the public domain.

No one aside from Murray was charged with jigsaw identification in connection with the Salmond case, despite the fact that 81% of respondents in a Panelbase survey who believed that had learned identities, gave mainstream media as the source of their knowledge. Lady Dorrian specifically stated that bloggers and mainstream media should be treated differently, as mainstream media are self-regulated.

Murray is the first person to be imprisoned in the UK for a media contempt for over 50 years, and in Scotland for over 70 years.

Murray’s imprisonment comes after an announcement from the UK Supreme Court that it will not hear his appeal. Former UK Ambassador to Uzbekistan Craig Murray will surrender himself to Police shortly and begin to serve the custodial sentence handed to him. A public protest against Murray’s incarceration is planned. Murray’s wife and mother of their 5 month and 12 year old sons Nadira has written an open letter asking for “active and outspoken solidarity from anyone concerned about the loss of freedom of speech and equality before the law”.

Murray had recently been called as a witness in a case brought by Spanish state prosecutors against UC Global for allegedly acting on behalf of the CIA in covertly spying on Julian Assange in the Ecuadorian Embassy.  Material before the Spanish court includes several hours of covert surveillance video of Murray in private conversation with Assange on the future of Assange and Wikileaks. The Scottish court removed Murray’s passport expressly to prevent him traveling to Spain to testify.

Craig Murray commented:

“I go to jail with a clean conscience after a Kafkaesque trial. I genuinely do not know who I am supposed to have identified or which phrases I published are said to have identified them, in combination with what other information in the public domain. This judgement will have a chilling effect on reporting of the defence case at trials, to the detriment of justice, and the different treatment of bloggers and approved media is sinister.

I carefully protect the identities of the accusers in my reports.

I believe this is actually the state’s long sought revenge for my whistleblowing on security service collusion with torture and my long term collaboration with Wikileaks and other whistleblowers. Unfortunately important free speech issues are collateral damage.”

Murray and the Craig Murray Justice committee have both signalled their intention to continue to resist the penalty handed to him by continuing to appeal to the European Court of Human Rights via all routes required. They are particularly concerned that in her opinion Lady Dorrian implied that bloggers and public commentators like Murray ought to be punished more severely than mainstream journalists for the same offense.

Ellen Joelle Dalzell, coordinator of the Craig Murray Justice campaign group stated:

“The sentence handed to Craig Murray not only sets legal precedent in terms of a custodial sentence for the charge of jigsaw identification, it represents an attack on free speech in general, and a tangible threat to the free reporting of legal trials in particular.

The judgement is excessively punitive, is likely to have severe implications for Murray’s poor health and represents a dangerous precedent for journalists and other writers who seek to fairly report or comment on matters of public law.

MARK HIRST’S CLAIM OF MALICIOUS PROSECUTION

Last week my firm sent the following letter to the Lord Advocate, Dorothy Bain, QC:

“We act for Mr Mark Hirst. Please treat this letter as intimation of a claim by him against your staff.

“Mr Hirst was prosecuted for an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 following comments which he made upon the acquittal of former First Minister Mr Alex Salmond. On 07 January 2021 the charges against Mr Hirst were found to be irrelevant, and a no case to answer submission was upheld.

“It is clear that there never was any basis for him being prosecuted, and the prosecution against him lacked reasonable and probable cause both objectively and subjectively. We also maintain that the prosecution was brought maliciously for the following reasons.

“First, it is clear and obvious that there was no reasonable or probable cause. This of itself is instructive in proving malice.

“Second, a warrant was obtained against our client when the primary evidence was plainly available. The warrant application failed to specify the threats that were being made, and was fundamentally misleading to the court. It was disproportionate to obtain a warrant and the application was not framed in a proper manner. It made false allegations about threats being made, which were established to be untrue.

“We are of course aware of the terms of section 170 of the Criminal Procedure (Scotland) Act 1995 which bears to provide immunity from suit for prosecutors when no imprisonment of the accused was imposed. However, having consulted with Senior Counsel, we consider that that provision is incompatible with Article 6 of the European Convention in that it fails to provide a remedy when a wrong is committed.

“Accordingly, our client’s instructions are that we are to place you on notice that we intend challenging the compatibility of section 170 should you fail to admit liability and offer fair compensation.

“Finally, we wish to make clear that this prosecution appears to have been politically motivated. Mr Hirst was, plainly, a supporter of Mr Salmond. We shall of course investigate whether Rape Crisis Scotland were encouraged to make a complaint for political motives, and indeed whether the complainers in the Salmond trial were similarly encouraged to do so.

“We enclose a copy of a writ that we shall be sending to the Chief Constable which is self explanatory. But prior to service, we would reiterate our demand that you admit liability, and confirm that compensation will be paid to our client, failing which we intend altering the writ to include the Lord Advocate as a second defender.

“Please respond to this letter within 21 days.”

I know that many readers of this blog are interested in Mark’s case and I hope it will be a useful service to you — particularly those of you who are prospective victims of the Crown Office and Procurator Fiscal Service (COPFS), and who are contemplating similar action – for me to unpack the contents of this letter a little.

No reasonable or probable cause

Until very recently, it was thought that the Scottish Lord Advocate and COPFS were immune from being sued for malicious prosecution. This was contrary to the position in England, where it was well established that such action was competent.

Partly because of this belief in absolute immunity, and partly because of the extraordinary degree of political protection which they enjoy, COPFS have, for many years now, been a law wholly unto themselves in Scotland, accountable for all practical purposes to no-one.

And so it may have continued had not COPFS made a major miscalculation. They picked for once on victims who had both the resources and the resolve to fight back, namely the liquidators of the former Rangers FC. When the cases against them ended in utter humiliation for the police and Crown, these men sued for malicious prosecution, and a bench of five judges ruled that COPFS, like everyone else in the land, should at last be held accountable for their wrongdoing.

Subsequent decisions in related proceedings have clarified what will be required for such actions to succeed. The first requirement is that COPFS must have proceeded without “reasonable or probable cause”.

There is both a subjective and an objective element to this.

In a very recent case involving one of the Rangers liquidators, the judge said this of the objective element:

“Where, as here, the charges were dismissed as irrelevant, it seems to me that it will normally be difficult to argue that reasonable and probable cause existed from an objective standpoint. A decision that a charge is irrelevant is a decision that even if the Crown were to prove all of the facts narrated in the indictment, the essentials of the criminal charge are not present. As a general rule, it can hardly be said, on an objective assessment, that there is reasonable and probable cause for initiating and continuing proceedings if a conviction cannot result because the circumstances averred do not, as a matter of law, amount to commission of the offence charged.”

As our letter to the Lord Advocate sets out, these were exactly the circumstances of Mark’s case. The sheriff made quite clear in dismissing the case that all of the facts brought before the court by COPFS did not constitute any crime known to the law of Scotland.

Any such crime existed only in the minds of Mark’s powerful accusers, and of their mouthpiece Rape Crisis Scotland, and had no business at all in entering the minds of the police or COPFS.

So much for the objective element.

The subjective element can be boiled down to this:

Did the then Lord Advocate and his COPFS staff have a reasonable basis for belief that they had reasonable and probable cause to proceed against Mark even although, objectively, they didn’t? (And yes, I know it sounds ridiculous, but welcome to the world of the law and lawyers.)

I can think of only one argument the Crown can make here, namely that the then Lord Advocate and his staff at COPFS had an understanding of the criminal law of Scotland so far below the level of the average first year law student that they genuinely believed that Mark’s political comments on a matter of public interest were a crime.

I wish them good luck in making that argument.

So much, then, for the subjective element.

Malice

As our letter suggests, “malice” in this context has a specific legal meaning which bears some relation to its meaning in ordinary usage but is quite far from being the same. In practice, what it means is that some further evidence of bad faith beyond the complete lack of justification for a prosecution should usually be present for “malice” in the legal sense to be established.

In a case like Mark’s, as in the Rangers cases, it’s likely that only a very little more need be shown and, as our letter again indicates, there is in fact a ton more to be had. Here is a paragraph from the writ we’ll be serving on the Chief Constable of Police Scotland, as set out in our letter:

“Further, the bringing of the proceedings by the police amounted to malicious prosecution of the pursuer without that reasonable or probable cause. The police obtained the warrant to search the pursuer’s home on the basis that it appeared that the pursuer had committed an offence. He had not. The police did not produce any information to the Sheriff which would have permitted scrutiny of the application as, had that been done, it would have been obvious that no offence had been committed. It was in any event unnecessary for a warrant to be obtained and it was disproportionate to seek one. As averred above, the police had obtained a copy of the postings in any event. The obtaining of the warrant in such circumstances was oppressive, an abuse of power and unnecessary and indicative of malice.”

In short, we’ll seek to establish that the warrant to search Mark’s home, itself unnecessary in any case, was obtained by the police and COPFS on fictitious grounds. On the basis of that warrant, the police and COPFS, knowing full well what they were doing, seized items which were part of the tools of Mark’s trade as a journalist, thereby depriving him of tools by which he might make his living.

This is far from the only ground on which we’ll seek to demonstrate “malice” – see, for example, my comments below about Rape Crisis Scotland – so suffice it to say that in our submission there will be more than enough COPFS “malice” in what was done to Mark to meet the legal requirement many times over.

Section 170 of the Criminal Procedure (Scotland) Act 1995

The relevant part of this provision is in these terms:

“No judge, clerk of court or prosecutor in the public interest shall be found liable by any court in damages for or in respect of any proceedings taken, act done, or judgment, decree or sentence pronounced in any summary proceedings under this Act, unless … the person suing has suffered imprisonment in consequence thereof …”

This was a rather extraordinary provision even before the Rangers cases, when it was still thought that the Lord Advocate and COPFS had absolute immunity across the board from civil actions for malicious prosecution. In light of the law as it now stands, the provision is, in my opinion, completely untenable and will inevitably be struck down by Article 6.

There is no reason in law or in common sense why COPFS should be liable in damages for maliciously prosecuting someone who goes to jail as a result but not someone who is, rightly, acquitted of the charges against them. Nor is there any reason why people tried before a jury (in “solemn proceedings”) should be treated differently from those tried by a judge alone (in “summary proceedings”).

On the grounds summarised in our letter, this is a provision which must be challenged, and will be challenged, in Mark’s action. It is a challenge which, if successful, will have obvious and far-reaching consequences.

Senior Counsel

I’ll admit that it goes against the grain for me to instruct senior counsel in any case as I take great pride in arguing all of my cases myself. I’ve been delighted, though, to make an exception for Andrew Smith QC, whose services we’re privileged to have secured for Mark’s case.

Along with a couple of other top QCs, Andrew has been, and continues to be, in the forefront of the successful challenge on COPFS immunity that has made possible the action we’re now taking for Mark. He knows this novel and developing area of Scots law with a thoroughness and grasp of detail that is unrivalled at the Bar.

That in itself is a fact that will in no way be lost on our opponents.

I know that Andrew is relishing what lies ahead and in particular is relishing our challenge to section 170, which will be of obvious significance to all of the activists who have been and are being prosecuted on political grounds by COPFS at the behest of the Scottish Government.

Frankly, there’s no-one I’d rather have on board.

Political Motives: Rape Crisis Scotland

The following paragraph is taken from the writ prepared by Andrew and which we’ll be serving on the Chief Constable of Police Scotland in due course, as set out in our letter above.

“On 31 March 2020, STV News posted an article online quoting Sandy Brindley of Rape Crisis Scotland (a Scottish Government funded pressure group) stating that ‘the comments [of the pursuer] are sinister, threatening and to identify the women would be illegal.’ On 02 April 2020, the Daily Record, a tabloid newspaper distributed mostly in central Scotland, alleged that the complainers in the case against Alex Salmond had made a complaint to the police about the pursuer’s post. On 02 April 2020, the pursuer contacted the police to advise that he had heard that the police had received a complaint and he offered to cooperate.”

Remember when reading this that Mark’s accusers – which is to say, Alex Salmond’s accusers – include in their number some of the most powerful people in Scotland.

Remember that Alex Salmond was nonetheless acquitted of all of the charges brought by these powerful accusers by a jury of his peers and on the clearest possible evidence that he was innocent.

And remember what some of the charges brought by these powerful accusers in the High Court of Justiciary – the highest criminal court in the land, where only the most serious crimes are supposed to be prosecuted – actually were:

Touching someone’s leg over her clothing in a car (witnessed by none of the other persons present in the car, including the person’s spouse);

Touching someone’s arms and hips over her clothing and congratulating her that she had lost weight while in a nightclub and in the presence of numerous other people (but again, it seems, witnessed by no-one else present);

Touching someone’s buttock over her clothing during a public photo-shoot (again, witnessed by none of the numerous other people present at the event).

Think of any ordinary person – or Rape Crisis Scotland itself, for that matter – trying to persuade the police even to investigate such allegations, let alone persuading COPFS to prosecute them in the highest court in the land, and you’ll get an idea of just how powerful these accusers are, and just how much of a mouthpiece for them Rape Crisis Scotland, the police and COPFS have become.

Hopefully, you’ll get an idea too of why this is an area which we intend to pursue in detail with the court by way of establishing yet more of the extra elements of bad faith which constitute the clearest possible “malice”.

The Scottish Government’s patronage and control of organisations like Rape Crisis Scotland – and the prominent presence in such organisations of Sturgeon’s personal clique of zealots – goes way wider than Mark’s case, as everyone who has been following their disgraceful attacks on the rights of Scottish women will be all too well aware.

21 days

The period of 21 days for the Lord Advocate to respond to our letter runs out on 12 August 2021.

I’ll let you know what happens next.

LETTER TO A FRIEND

I was astonished to discover recently that you support the “reforms” proposed by the Scottish Government to the Gender Recognition Act of 2004.

Surely you see that this is a matter of the most basic ontology and epistemology.

This is what is proposed, as I assume you know:

Grounds on which application to be granted by Registrar General for Scotland

(1) The Registrar General for Scotland must grant an application under section 8A(1) [for a gender recognition certificate] if—

(a) the application includes a statutory declaration by the applicant that the applicant—

(i) is aged at least 16,

(ii) meets the condition in section 8A(2) [that the person is the subject of a Scottish birth register entry or is ordinarily resident in Scotland]

(iii) has lived in the acquired gender throughout the period of three months ending with the day on which the application is made, and

(iv) intends to continue to live in the acquired gender permanently…

You will have noted, I’m sure, that the entire process will now be one of self-certification.

Thus, if a man aged 16 or over with a Scottish birth certificate or living here self-certifies that he is in fact a woman and intends to remain a woman, he cannot be refused a gender recognition certificate. Same thing for a woman who says she is a man.

Nothing else whatsoever is required. Using their gender recognition certificates, the man will become legally female on his birth certificate and the woman will become legally male on hers.

The reference to “gender” is of course a quite deliberate obfuscation. The self-certifying person legally, and quickly, changes sex.

Nor do those proposing these reforms regard this as a legal fiction. They vehemently believe — and demand that the rest of us also believe — that ontological reality has been observed. The man is now a woman and the woman is now a man. The fully intact male-bodied person is female and the fully intact female-bodied person is male.

I have fought the hegemony and its lies all my adult life — as you have for much of yours. In the face of everything ranged against us, all we have is the truth.

All we have is reality — the ontological facts — and the epistemology that is the genetic inheritance of all human beings to know what that reality is.

Being either a man or a woman is one of the most overdetermined realities there is in what Kant called “things for us” as human beings (as opposed to things for frogs or insects or giraffes, which we can never know, or “things in themselves”, which only a handful of particle physicists have even the remotest handle on).

If someone is prepared to surrender that reality for any reason then I’m at a loss to see what reality they won’t surrender. If what every fibre of their being (itself the product of millions of years of evolution) tells them is a man is standing in front of them (and if they know what’s more that the modern science of chromosomes, gametes, bone density, skull shape and size, estrogen and testosterone etc etc etc could also confirm it instantly) and they are prepared to say that this ontological entity is a woman, then there is simply no reality that is secure in their epistemology.

Bluntly, that person has demonstrated that the hegemony can tell them anything and they’ll believe it.

Indeed, their grasp on reality is actually at a level far below that of climate change deniers or believers in the literal truth of the Bible who at least have the excuses of complexity of the facts (climate change) and faith (Bible) for their credulity.

I honestly don’t know what excuse someone who thinks a man can be, or turn into, a woman, or vice versa, has for that denial of ontological reality or, as I say, what there might possibly be that they couldn’t be induced to believe.

I’m utterly baffled to think that this person could be you.

AN URGENT QUESTION

According to the latest bulletin from Scottish Government mouthpiece Rape Crisis Scotland, the First Minister’s Chief of Staff Liz Lloyd intervened in the Salmond complaints process on behalf of a woman who later became “one of the complainers” against Salmond at his criminal trial.

The woman – let’s call her Ms X – has used Rape Crisis Scotland, as has now become the norm for the Salmond complainers, to give her untested – and untestable – claims the widest possible public audience while preserving her court-ordered anonymity. Whether that is a legitimate use of such anonymity remains to be tested.

Ms X’s claims

Ms X’s core claims are these:

“In January 2018 I was approached by Scottish Government HR regarding an investigation they were undertaking into a complaint about Alex Salmond’s behaviour during his time as First Minister.

“I had been named as someone who experienced such behaviour in statements obtained during the course of HR’s investigation.

“After discussion with HR, I decided I did not in any way wish to share with them my own personal experiences, however I also did not want to obstruct an investigation.

“I did not know if I was obliged to cooperate after being asked to.

“I decided to raise the matter with a trusted senior person in government, Liz Lloyd, to gain advice and an understanding of my obligations.

“I was extremely conscious of the sensitivity of the investigation and I, therefore, did not tell Liz who the complaint was from, who it was about or the nature of the complaint.

“I informed her I had been approached by HR in relation to a current investigation. I said I had been asked if I wanted to make a complaint and made it clear to her I did not want to, but I was concerned that if I didn’t I may be impeding an investigation.

“She offered to convey my concerns and what I wanted to happen to an appropriate senior civil servant, who was the most appropriate person to discuss the issue with. I agreed to this course of action. This was not ‘interfering’ but acting in line with my wishes.”

We know in addition that Lloyd’s intervention was made in late January or early February 2018 because Ms X’s claims have been made in response to the disclosure by David Davis in the UK Parliament of an email of 6 February 2018 from Judith Mackinnon in which Mackinnon refers to “Liz interference” and calls it “v bad”.

Suspending disbelief (again)

Let me say at the outset that I don’t believe the claim that Lloyd was not informed that this request from Ms X involved the Salmond complaints. It would be quite bizarre for the First Minister’s Chief of Staff to involve herself in any HR matter without insisting on being informed – and informed fully – of all of the relevant details.

A few seconds’ thought will persuade any rational person that this would have to be the case. Apart from anything else, how could the First Minister’s most senior special advisor even have the relevant conversation with one of the Scottish Government’s most senior civil servants unless both of them knew, at least broadly, what they were talking about?

Presumably, we’re being asked to believe that this was yet another of those John Le Carre conversations that seem to occur daily in the senior echelons of the Scottish Government:

“They said it would rain tomorrow, Judith.”

“You can’t trust the weatherman, Liz, not in the summer.”

“Ah great, thanks, Judith. All sorted now.”

It’s ridiculous of course, but suppose we choose to believe it. Suppose the First Minister’s Chief of Staff really did intervene, quite unknowingly, in an ongoing process being run by the Permanent Secretary under the Scottish Government’s newly adopted procedure for handling harassment complaints against former Ministers.

What follows then?

Nicola Sturgeon’s view of intervention in complaints against former Ministers

The views of Lloyd’s boss, the First Minister, on interventions in the complaints process against former Ministers are well known by now, but, for the sake of completeness, let’s refresh our memories.

This is what Sturgeon told the Scottish Parliament on 8 January 2019:

“I make it very clear that I was not involved in the procedure in any way. I did not intervene in the procedure, I did not seek to intervene and I did not try to influence the course of the investigation. Had I done so, that would have been the subject of absolutely legitimate criticism” (my emphasis).

This is what Sturgeon told the Fabiani inquiry on 3 March 2021:

“Sections 4.22 and 4.23 of the Scottish Ministerial Code seek to guard against undisclosed outside influence on decisions that ministers are involved in, and are likely to have an influence on….

“The situation was, as I saw it, the opposite of that. The terms of the procedure excluded me from any investigation into a former minister. I had no role in the process and should not even have known that an investigation was under way.

“In my judgement, the undue influence that section 4 is designed to avoid would have been more likely to arise had those who were conducting the investigation been informed that I knew about it. I did not want to take the risk that they might be influenced—even subconsciously—by any assumption of how I might want the matter to be handled: their ability to do the job independently would be best protected by my saying nothing” (my emphasis).

A significant intervention in the investigation by the First Minister’s Chief of Staff, however unknowingly, must qualify by any reasonable measure as risking an assumption of how the First Minister wanted the matter handled.

Liz Lloyd’s view of intervention in complaints against former Ministers

It is axiomatic that Liz Lloyd, as chief special advisor to the First Minister, would hold the same view on this matter as her boss, and would be just as anxious as her boss to avoid intervention in such matters for exactly the same reasons. If Sturgeon’s reasoning is sound, then of course any such intervention by her Chief of Staff must be subject to the same “absolutely legitimate criticism”.

But as it happens, we don’t even have to rely on that assumption because Liz Lloyd herself, on 24 November 2017, at a meeting with Cabinet Secretary James Hynd, began the process of advancing exactly these views.

(And at the risk of eliciting more groans from loyal readers waiting for the next instalment of A Very Scottish Coup, I can’t resist a quick preview here. According to a Scottish Government response to a recent FOI request, there was another participant in this meeting who will be of interest to readers of this blog. Sturgeon’s Principal Private Secretary John Somers was at the meeting too – you know, the one who gave sworn evidence at the inquiry that he had no involvement at all in the development of the complaints procedure for current and former Ministers.)

In his evidence to the Fabiani inquiry, Hynd said this:

“During the exchanges that I had with the chief of staff, particularly at a meeting on 24 November, she indicated that the procedure should be developed further to remove from the First Minister the role to decide how to investigate complaints….

“… In the engagements that I had with the chief of staff, she was reflecting what she felt was the First Minister’s view that the First Minister should have less and less involvement in the operation of the procedure at an operational level.”

It could hardly be more obvious, then, that Liz Lloyd was no passive receiver of the First Minister’s line on this. She was, from 24 November 2017 at latest, an active participant in getting this view of the First Minister put as quickly as possible into effect.

As longstanding readers of this blog know, this was achieved in spectacular fashion with the radically “recast” procedure sent out at nearly midnight on 5 December 2017, after a day of frenzied activity and extensive “consultation” with the Salmond complainers.

So when Lloyd was asked by Ms X to intervene in an HR complaints process that was clearly important enough to require such extreme secrecy as to its subject matter and participants, her own very recent crusade to avoid interference in such a procedure at all costs can hardly have faded already from her mind.

An urgent question

When faced with the wholly context-free request from Ms X, then, surely the first thing Lloyd should have done was satisfy herself that its subject matter was at least not one which had anything to do with former Ministers.

After all, as detailed above and exhaustively elsewhere in this blog, both she and her boss had just moved heaven and earth to make sure they had no involvement whatsoever in any such processes.

So why didn’t she?

Maybe someone at the Fabiani inquiry could ask.

Maybe urgently.

DID JOHN SOMERS LIE TO THE FABIANI INQUIRY?

Documents just released by the Scottish Government strongly suggest that the First Minister’s Principal Private Secretary John Somers attended a crucial meeting on 13 November 2018 where advice was sought from senior counsel on the crisis that had arisen in the defence of Alex Salmond’s judicial review action.

Somers has previously denied on solemn affirmation at the Fabiani inquiry that he had any such involvement in the judicial review.

If Somers was indeed at the meeting with counsel on 13 November 2018, it seems clear that he has lied to the inquiry.

It is inconceivable that he could have forgotten participating in such a meeting.

Somers’s evidence

On 1 December 2020, Somers told the Fabiani inquiry of his sole involvement in the judicial review procedure:

“On the JR, and specifically the commission, I was asked on 21 December 2018 to search for any documents, emails, text messages or notes, using a number of suggested search terms. Neither I nor the private office held any documents that fell within the suggested parameters.”

He was unequivocal about having had no other involvement:

“Other than carrying out and overseeing the requested searches of the First Minister’s private office, as part of the commission and diligence, I had no involvement in the judicial review.”

The newly disclosed documents

On 13 November 2018, at 13.55, a Scottish Government official whose name has been redacted emailed senior counsel Roddy Dunlop QC to confirm that day’s emergency consultation with the First Minister and Permanent Secretary.

The official confirmed that the meeting was set for 4.45, and continued:

“The Perm Sec is intending to come along. Liz Lloyd will be there, as will [redacted]. John Somers, FM Private Office will be there.”

The email was copied to other redacted recipients who may or may not include John Somers. If he was copied in, then he would have had access not only to the email exchange but to the copious documentation that was to be discussed at the consultation, and which was attached to the email chain, including the views of Nicola Richards, Judith Mackinnon and the First Minister’s Chief of Staff Liz Lloyd on various matters.

In that case, even if, for some unforeseen reason, he did not attend the meeting, he would still have had “involvement” in the judicial review in any meaningful sense of the word.

Indeed, it’s hard to see how he could have been due to attend such a meeting without having had some “involvement” up to that point. If he didn’t, why was he due to attend at all?

The Scottish Government’s evidence

If Somers was at the meeting, contrary to his own evidence on solemn affirmation at the inquiry, his attendance is also contrary to the Scottish Government’s stated position.

On 13 September 2019, they published their response to the following question submitted under the Freedom of Information (FOI) provisions:

“Further to the FOI answer of 29 May, please list attendance of Scottish Government officials and Ministers and Special Advisers at each of the 17 meetings and conference calls with counsel defending the judicial review between 23 August and 3 January 2019.”

For the meeting on 13 November 2018, their answer was as follows:

“13 November 2018: First Minister, Elizabeth Lloyd, Permanent Secretary.”

No mention of John Somers.

The First Minister’s evidence

Nicola Sturgeon also gave evidence about the meeting to the inquiry on 3 March this year:

Murdo Fraser: We know that you attended a meeting with counsel on 13 November. Who was at that meeting and what was discussed?

The First Minister: Clearly, I was at the meeting, as were senior and junior counsel, the permanent secretary and Liz Lloyd—my chief of staff. I think that SGLD was represented, as well.
I requested the meeting; it was part of what I thought was the proper thing to do.

No mention of John Somers.

Why are there no notes or minutes of this and other meetings?

Those of you who are, like me, of a cynical turn of mind, will no doubt wonder if the extraordinary lack of minutes or notes of this and other meetings is somehow related to these kind of matters.

This is how Deputy First Minister John Swinney explained things in his letter to the inquiry of 8 March 2021:

“My letter of 5 March confirmed that the Scottish Government does not hold formal minutes of meetings with Counsel during the Judicial Review and, in response to the clerks’ follow-up question, we have not identified any record of minutes having been prepared or previously held by the Scottish Government.

“I asked officials to check what documents are available, prioritising the meetings on 2 and 13 November 2018, which the Committee has highlighted. Officials have identified a small number of contemporaneous email exchanges referencing these meetings. This includes exchanges following the meeting on 2 November and emails ahead of the meeting on 13 November 2018, attended by the First Minister and Permanent Secretary.

“These exchanges make clear that the focus of the meetings was on discussing and agreeing with external Counsel adjustments to the pleadings for the judicial review. I have asked officials to urgently … publish these email exchanges as soon as possible this week.”

Well, now we have them, John.

And as usual they give rise to many more questions than answers.

A Very Scottish Coup

All of these questions arise of course from my trying to keep up with the shocking revelations now coming out on a daily basis about this Very Scottish Coup, and which keep delaying the completion of Parts Three and Four.

The Government’s now published legal advice, which I’m continuing to review in detail for this purpose, is shocking almost beyond words. In particular, I keep thinking of Judith Mackinnon’s evidence that she can’t really see what she did wrong, and Nicola Sturgeon’s evidence that she just didn’t know anything about anything.

It truly is tempting just to abandon the whole enterprise of rational analysis when we’re this far through the looking glass.

Anyway, for those of you still hanging in there, my usual apologies for the continued delay.

WHAT THE SCOTTISH GOVERNMENT KNEW AND WHEN THEY KNEW IT

NOTE: I’ve edited this post after reviewing the legal advice published by the Scottish Government, as it contained some inaccuracies, for which my apologies. I’m afraid this will also delay the next post a little longer. Apologies for that too.

GD 12/03/21

Part Three of A Very Scottish Coup is nearly done and I’ll post it soon. In the meantime, here are a couple of things I’ve discovered while writing it.

The first thing is this:

The Scottish Government have always claimed that the requirement in their procedure for an Investigating Officer to have “no prior involvement with any aspect of the matter being raised” was interpreted by them throughout the development of the procedure to mean “no prior involvement in the subject matter of the complaint”.

They have always denied having the slightest inkling that the phrase could, and would, be interpreted by the courts to mean “no prior knowledge of the details of the case”.

The Scottish Government’s unique interpretation of the phrase is of course what enabled Judith Mackinnon – who had prior knowledge of the complaints against Alex Salmond coming out of her ears – to be appointed as Investigating Officer for those complaints on 16 and 24 January 2018.

I can tell you now that, as at 12 December 2017, the Scottish Government were in fact well aware of the proper interpretation of this crucial phrase in the procedure being developed by them.

Their claims that they didn’t know what their own policy actually meant are just more lies, and in what follows, I’ll tell you why.

The second thing is this:

The Scottish Government officials instructing the defence of the judicial review were well aware from the outset that Judith Mackinnon had prior knowledge of the Salmond complaints such as to make the whole procedure unlawful from the moment she was appointed.

They were well aware that her prior knowledge of the details of the complaints extended not only to receiving Ms A’s full statement on 22 November 2017, and to meeting personally with Ms A on 5 December 2017 to discuss her complaint, but also to taking Ms B’s complaint directly from Ms B prior to being appointed Investigating Officer of that complaint.

Mackinnon’s unlawful meeting with Ms A

On a date redacted by the Scottish Government, Judith Mackinnon sent Ms A a letter which she signed as “Investigating Officer” and which began:

“We met on [Redacted] to discuss your experience about the alleged misconduct of a former minister. Following this meeting you submitted a formal written complaint to Nicola Richards, Head of People Directorate. … I have been designated as the investigating officer” (my emphasis).

I have no idea what legitimate reason there could possibly be for redacting the date on this letter. It seems likely, however, that the letter was sent immediately after Mackinnon was appointed Investigating Officer on 16 January 2018, the same day that Ms A lodged her formal complaint.

It also seems likely that the redacted date of her meeting with Ms A prior to the lodging of her formal complaint was also 16 January 2018, since it was the eventual discovery of a meeting between Mackinnon and Ms A on that date that so horrified external counsel.

When Judith Mackinnon then gave evidence on oath at the Court of Session in December 2018 that she could not remember this meeting, counsel’s horror turned to barely concealed anger.

If I’m right that the meeting referred to in Mackinnon’s redacted letter is the meeting of 16 January 2018 that she cannot now remember, this is a truly remarkable failure of memory, even by Scottish Government standards.

Imagine if you can writing in a formal letter about a clearly important meeting that has just taken place in January 2018 and then being unable to remember even having that meeting, far less the details of it, later that same year. Imagine further that the other person at the meeting cannot remember it either or, for some reason that we can only again imagine, cannot be asked about it.

If you can’t imagine how any of this could be possible then join the club, because I can’t either.

What is clear is that all of Mackinnon’s prior contact and meetings with Ms A rendered her subsequent appointment as Investigating Officer wholly unlawful on that ground alone.

Mackinnon’s unlawful meeting with Ms B

The text messages between Mackinnon and Ms B which have been disclosed by the Scottish Government to the inquiry are, as usual, redacted and again for no legitimate reason that I can think of, even the dates of them have been redacted.

However, the contents of the messages make clear that they were exchanged prior to the lodging of Ms B’s formal complaint on 24 January 2018. The context makes it similarly likely that the exchanges occurred after Mackinnon and Richards met with Ms A on 5 December 2017.

On a redacted date, then, Mackinnon texts Ms B:

“[Ms B] – just checking if you got my email on Friday? Judith”

Ms B replies:

“Hi Judith, yes sorry i did. [Redacted] I’m still having a think about it if that’s ok, but will come back to you later today. Thanks for all your help with this, [Ms B]”

Mackinnon texts back:

“No problem [Ms B]. And no rush either – was thinking that maybe you take time over Christmas and come back to me in January? Judith”

In the format released by the Scottish Government, that same exchange then appears to continue, but again the content of the messages indicates that we are now at a later time period, and very likely one close to the date of the lodging of Ms B’s formal complaint on 24 January 2018.

Mackinnon now texts to Ms B:

“[Ms B] Nicky Richards has let me know that you have decided to make a formal complaint. In order to discuss the logistics it would be good to talk. Can you advise when you would be free for a telephone conversation? Best wishes in the meantime, Judith Mackinnon, SG”

There follows some to-ing and fro-ing about times to call, which ends with Ms B texting:

“Thanks Judith, speak to you tomorrow. [Ms B]”

And then, with the usual redaction of the date:

“[Ms B] – we are [Redacted] currently at [Redacted] See you soon. Judith”

Who “we” might be can only be guessed at, but it’s clear that Mackinnon and Ms B were about to meet on the day that text was sent.

And so, unless there was a yet further meeting between the two that has not been disclosed, these texts must have been exchanged on 24 January 2018, and the meeting must have been for the express purpose of Mackinnon herself taking Ms B’s complaint.

We know this because of this one-sentence email, sent by Mackinnon herself to Nicola Richards on 19 October 2018:

“[Ms B] raised her complaint directly with me.”

As with Ms A, it’s quite clear that all of Mackinnon’s prior contact and meetings with Ms B rendered her subsequent appointment as Investigating Officer wholly unlawful on that ground alone.

What those instructing the judicial review defence knew and when

As I’ve detailed in previous posts, Leslie Evans knew from the very start that Mackinnon had been provided with a copy of the full statement taken from Ms A on 22 November 2017 – the statement which, with only minor revisions, later became Ms A’s formal complaint – because Richards and Mackinnon advised her of that fact, in writing, on 23 November 2017.

Evans knew from the very start that Mackinnon had then met with Ms A on 5 December 2017 because Evans personally directed Mackinnon to have that meeting.

And Evans must also have known from the very start that Mackinnon had met Ms A again prior to lodging her formal complaint on 16 January 2018 because, as is detailed above, Mackinnon had referred to that meeting in her formal letter to Ms A immediately after she was appointed Investigating Officer of Ms A’s complaint, and that letter must have formed part of Mackinnon’s report to Evans.

What is also now clear is that Evans must have known by October 2018 at latest that Mackinnon herself had taken Ms B’s complaint directly.

And matters go further, because forwarded with Mackinnon’s email of 19 October 2018 is an email exchange which shows still further the nature and extent of her involvement with Ms B before any formal complaint was lodged.

On a date which has been redacted, Mackinnon emails Ms B to thank her for “talking to me”. She then sets out various options to progress a formal complaint, and, by way of encouragement, advises that “there may be other individuals who are also prepared to submit a complaint” (my emphasis).

Ms B replies, on a date also redacted:

“Dear Judith,

“As discussed, I have decided to make a formal complaint but would not like my name to be attached to this.

“Sorry this is a bit of a ramble.

“Happy to discuss anything in more detail but will wait to hear back from you about [Redacted].

“Many Thanks

[Ms B]”

The information in this exchange and the later confirmation from Mackinnon that Ms B had “raised her complaint directly with me” could hardly be more significant as evidence of Mackinnon’s improper interactions with Ms B.

But of course it’s inconceivable that this was the only such email sent at this stage, and sent what’s more on the very clear understanding that it would be passed on to external counsel.

So where is Richards’s email forwarding on in turn, and in full, this important information from Mackinnon to whomever had asked her for it?

And where are all the other emails in September and October and November and December 2018 from all the other participants who, like Mackinnon, must have been forwarding on relevant information as it was requested of them by Evans and her accomplices?

They’re buried of course – shredded for all we know, since nothing can be put past this lot – and, if it’s left up to the hopeless Fabiani inquiry and the incompetent Scottish media, buried is where they’ll stay.

How the Scottish Government knew in December 2017 that Mackinnon could not lawfully serve as Investigating Officer

Which brings me back finally to where I started: what the Scottish Government knew about their unlawful procedure, and when they knew it.

In their Statement to the Fabiani inquiry, the Scottish Government were keen to emphasise the significance of guidance produced by the UK Government Civil Service Employee Policy team (CSEP), a high-powered unit located in the UK Cabinet Office whose specific job it is to provide authoritative HR advice to the whole of the UK civil service.

As the Scottish Government are at pains to note in their Statement, their civil service officials:

“… received a draft copy of guidance on handling of historic allegations of harassment developed by the UK Government Civil Service Policy team on 17 November and a later copy with Frequently Asked Questions (FAQ) on 12 December during the development of the procedure.”

It seems that their reason for focusing on these documents is the highly dubious – in fact, laughable – claim that the documents illustrate some superiority of the Scottish Government over the UK Government because we ended up with an unlawful procedure that has by now cost us well into the millions and the UK Government didn’t:

“The lack of a published process for handling complaints about current or former Ministers in the UK Government confirmed to the Scottish Government that it had been the correct course of action to have started to develop its own procedure.”

However, on the way to making this hilarious claim, the Statement does – probably by accident – manage to say some true and important stuff about the CSEP documents, namely the guidance they contain that:

“… in complex and sensitive cases of historical allegations, it is advisable to appoint either an experienced investigator or refer the case to the HR Director, who may handle the investigation within HR.”

Of course, the Scottish Government neglect to point out that this advice is intended to cover historical allegations made by one serving civil servant against another, and says nothing at all about such allegations against a former Minister, but let that pass. The important point for present purposes is that, out of all of the guidance on which they might have chosen to hang their hats, the Scottish Government chose to quote specifically from these CSEP documents, and in particular, from Answer 23 of the CSEP “Frequently Asked Questions”:

“In complex and sensitive cases of historical allegations, it is advisable to appoint either an experienced investigator or refer the case to the HR Director, who may handle the investigation within HR. If such cases involve a senior member of staff…, departments may want to go outside their own department to ensure somebody appropriately senior and independent is appointed” (my emphasis).

Question 23, which the above paragraph partly answers, is in the following terms:

“Who should handle investigations and what training is available for investigators?”

I wouldn’t dispute for a moment that an authoritative civil service “FAQ” document which asked and answered that question should be given this level of prominence by the Scottish Government, especially since it’s clear that the “FAQ” was received and read by Nicola Richards and Judith Mackinnon, exactly as the Scottish Government Statement are at pains to aver.

The “FAQ” was received by Richards as an email attachment on 12 December 2017 and sent on by her to Mackinnon and others that same day under subject heading “Guidance on handling allegation of harassment FAQ”. We know that Richards, Mackinnon, Evans and others read it thoroughly because it is given such significance in the Scottish Government’s own Statement to the inquiry.

So in the context of the procedure for handling harassment complaints which Richards and Mackinnon were at the very heart of developing at exactly the time the guidance was received it is simply inconceivable that they did not read and understand the most important sentence in Answer 23:

“In every case, the investigator will need to be impartial, and have no prior knowledge of the details of the case.”

Let me repeat that: no prior knowledge of the details of the case.

I’ve written before on this blog about how basic this principle is and how utterly untenable it is for anyone, let alone an experienced HR professional or lawyer, to try to argue, as the Scottish Government still try to argue, that the phrase “no prior involvement” was thought by them to mean no prior involvement as a participant in, or witness to, the actual events comprising the complaint.

As Jerry Seinfeld once said, dry-cleaners should hardly need the Dry-Cleaner’s Code to tell them not to wear your clothes, and Evans, Richards and Mackinnon shouldn’t have needed Answer 23 to tell them that “no prior involvement” means – and only means – no prior knowledge of the details of the case.

But as it happens, we now have Answer 23 too.

And it is therefore beyond a shadow of a doubt that Evans, Richards, Mackinnon and the whole Scottish Government were made aware on 12 December 2017 at the very latest that appointing Mackinnon to the role of Investigating Officer would be unlawful.

As we know, and as external counsel found out many months too late, they went ahead and did it anyway.

In some other Scotland, one where laws and rules actually meant something, someone would have had to resign for that by now.

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