The Scottish Government’s procedure for complaints against former Ministers was fundamentally “recast” on 5 December 2017 after a senior civil servant agreed to “test” the latest draft of it with “key individuals”. One of those individuals, who later went on to make a formal complaint against Alex Salmond, was told in an email of 29 November 2017 that this would give her an opportunity “to consider next steps”.

Until the change, the First Minister had played a central role in each successive draft of the new procedure. After it, she had no role at all in the process.

Instead, complete control over the complaints procedure was handed at a stroke to the Scottish Government’s Permanent Secretary, Leslie Evans. This unelected civil servant was now to take charge of investigating complaints against former Ministers, and was to be the sole judge of whether they were “well-founded”.

Documents recently made public by the Salmond inquiry reveal this sudden and unexplained change of direction. The exclusion of the First Minister from any role in the procedure was retained when the new policy was approved by Nicola Sturgeon herself on 20 December 2017 and duly came into force.

The repercussions of this power shift of 5 December 2017 could hardly have been more important or wide-reaching for Scottish politics.

When complainers who had been waiting in the wings while the new procedure was being drafted then lodged their formal complaints of sexual harassment against Alex Salmond in January 2018, they were dealt with under the post-power shift procedure.

Had this been the procedure as drafted to 1 December 2017, Sturgeon would have been informed by Evans as soon as the formal complaints against Salmond were received in January 2018. Sturgeon would then have been obliged to participate in the investigation process by taking any steps necessary to secure Salmond’s cooperation with the process. And, crucially, Sturgeon herself would have decided on the merits of the complaints made against Salmond, and whether or not they should be upheld.

Instead, the post-power shift version was applied to the Salmond complaints. Sturgeon was not even informed by Evans when the complaints were received. Indeed, by her own account, she only learned of the complaints because Salmond himself informed her of them on 2 April 2018. Sturgeon was, as she herself told the Parliament, forbidden from seeking to “intervene” in the process even when finally informed of it. And the crucial decision on the merits of the complaints was made, entirely without reference to Sturgeon, by Leslie Evans.

If it was Sturgeon’s own idea to suddenly remove herself from the complaints process, why did she do it? If it was not her idea, why did she go along with it?

Plugging the gap

When Sturgeon and her Cabinet ordered a review of complaints procedures on 31 October 2017, the responsibility for drafting new procedures fell quickly on three senior civil servants: the Head of the Cabinet secretariat, James Hynd; the “Director for People”, Nicola Richards; and the “Head of People Advice”, Judith Mackinnon. They reported at every stage to Evans.

Hynd took the lead in producing eight distinct versions of the procedure in the period to 1 December 2017, and in keeping track of the many revisions put forward in between versions by Richards, Mackinnon, Evans and the small group of civil servants and lawyers who were consulted at various points as the drafting progressed.

Hynd seems to have recognised from the outset the value of making the new complaints policy for former Ministers look as much as possible like a simple extension of existing procedures for current Ministers based on the Ministerial Code. The value was this. Framing the new procedure as the mere plugging of a “gap” in the Code’s existing provisions offered by far the best hope of selling it as legitimate policy development and not as an unprecedented departure from ordinary good sense and legality.

The Ministerial Code of 2016, soon to be amended by Hynd but still in force at this time, said this about the behaviour of current Ministers: “The First Minister is … the ultimate judge of the standard of behaviour expected of a Minister and of the appropriate consequences of breach of these standards.”

Accordingly, in his first four drafts of the new procedure, Hynd was careful to make the First Minister the “ultimate judge” of complaints against former Ministers too. To achieve this, and after setting out proposed procedures for investigating claims and having a report of the investigation prepared, he included the same provision each time: “If the former Minister is a member of the Party of the current Administration, the First Minister will consider the report from the perspective of the actions of the former Minister.”

The sought-after analogy with the First Minister’s ultimate authority under the Ministerial Code, on which the perceived legitimacy of the policy depended, is clear.

Richards, Evans and the other civil servants had different priorities. Apparently with the support of the First Minister and her Chief of Staff Liz Lloyd, their overriding concern was to have operational control over the investigation of complaints delegated from the First Minister to civil servants under the direction of Evans. This concern applied to both current and former Ministers and they sought to support it with constant references to their “duty of care” for civil service staff with complaints.

In Hynd’s first four drafts, this too was accommodated. Control over investigation and the preparation of a report of that investigation was duly delegated to the Permanent Secretary and her civil servants in each draft. And in each draft too was the same provision as to what was to happen alongside consideration of the report by the First Minister: “The Permanent Secretary will consider the report from the perspective of ensuring the welfare and support arrangements of the staff member.”

The division of responsibility reflected the perceived different interests of government on the one hand and the civil service on the other. The Permanent Secretary would look after “the welfare and support arrangements of the staff member.” It was for the First Minister to judge “the actions of the former Minister.”

With his fifth draft, Hynd took the development of both strands of the procedure to a new level. Up until this point each version had been about former Ministers only. Now for the first time he produced a draft setting out the complaints procedures for both current and former Ministers in one document. Current and former Ministers were each allotted their own section of provisions but, crucially, each referred to a common provision for investigation and the preparation of reports which would then apply equally to both categories of Minister.

The attraction of this is obvious. What could make the new procedure look more like the simple plugging of a gap in existing measures than to have current Ministers, already very clearly covered by the Code and under the ultimate authority of the First Minister, regulated now by exactly the same provision as former Ministers?

Again, however, the other main strand of policy objective was also being simultaneously accommodated. The common provision which regulated the investigation of complaints and the reporting of those investigations was essentially the same one as in the first four drafts, which had covered former Ministers only. By this means, the First Minister’s ultimate authority over the investigation of complaints was now delegated to Evans and her civil servants for current Ministers just as it had been from the very first draft for former Ministers.

This fifth version was then sent to the First Minister on 22 November and discussed at a meeting on 24 November. However, the drafting process continued unabated and three more distinct versions were produced, each now dealing with both current and former Ministers and each delegating operational powers to the Permanent Secretary and her civil servants while preserving the First Minister’s ultimate authority to decide complaints against both current and former Ministers.

Version 6.2, the eighth distinct version produced in the drafting process, was sent by Hynd to Richards on 1 December 2017. As in every previous draft, investigation and reporting were delegated to the Permanent Secretary but the decision on the complaint, and any action affecting the former Minister, was for the First Minister alone: “For complaints involving a former Minister who is a member of the Party of the current Administration, the Permanent Secretary will inform the First Minister of the outcome of the investigation…. It will be the responsibility of the First Minister to consider any further action.”

The gap unplugged

On 5 December 2017, a mere four days after Hynd’s eighth version was sent to her, Richards for the first time circulated a version of her own, one that changed the game completely. The new version put paid once and for all to any notion that the policy for former Ministers could be seen as analogous to the policy for current Ministers.

The “plugging the gap” argument, always a stretch, was dead.

In the new version, there was no longer any common provision for current and former Ministers. Each was dealt with in entirely separate sections. All previous attempts to make the respective procedures look like two sides of the same coin were abandoned.

For harassment complaints against current Ministers, the First Minister remained, as she always had been, the “ultimate judge of their conduct”, both of whether a complaint was to be upheld and of what the consequences would be if it was.

But for harassment complaints against former Ministers, she now had no role at all: “The Permanent Secretary will … decide whether the complaint is well-founded.”

And then: “The Permanent Secretary will also determine whether any further action is required…”

So much for any continuity with the Ministerial Code. So much for the First Minister as “ultimate judge”. And so much for both the Permanent Secretary and First Minister being needed in the process to look after the separate interests of civil service and government, not to mention the interests of the accused former Minister. Now, only the interests of the civil service were to be represented in the process.

Heroically, James Hynd still tried to present this state of affairs as the mere plugging of a gap in the Ministerial Code and other procedures when he appeared before the Salmond inquiry last week. “I identified the gap in respect of former Ministers,” he told the Committee, “and it was subsequently agreed by the Permanent Secretary and the First Minister that that needed to be filled.” It was, he said “right to fill the gap, but perhaps it had not been addressed in times gone by because of the difficulties and complexities in drafting such a procedure.”

Tactfully, Hynd did not mention that the basis of the eight versions of the procedure in which he had grappled with those difficulties and complexities had been discarded at a stroke in the ninth version drafted by Richards, essentially the version approved by the First Minister on 20 December 2017 and still in force today.

At the time, however, he appeared to at least recognise that there might be a problem. “Thanks for this,” he wrote to Richards on 6 December 2017 to acknowledge her new version. “I have confined myself to thinking about the Ministerial Code aspects. HR colleagues and [Redacted – Lawyer 1] are far better placed than me to offer advice on whether the recast process satisfies best HR practice and our legal obligations.”

The word “recast” screams off the page as does the subtext of the email. Hynd had done his best. Richards, Evans and the lawyers were running the show now.

From “ultimate judge” to “no role”

It is hard to overstate just how much the Richards version of 5 December 2017 was indeed a “recast” and not any mere revision of the draft procedure as it had existed to that point.

In “v.6.2” , Hynd’s last draft before the recast, as soon as a complaint of harassment was received concerning a former Minister of her own Party: “the First Minister will … be informed.”

After the recast, that provision simply disappeared.

Before the recast: “The First Minister will take any steps necessary to ensure that the former Minister cooperates with the investigation.”

After the recast, that provision too disappeared.

Before the recast: “the Permanent Secretary will inform the First Minister of the outcome of the investigation…. It will be the responsibility of the First Minister to consider any further action…”

And after the recast: “The Permanent Secretary will… decide whether the complaint is well-founded….The Permanent Secretary will also determine whether any further action is required…”

The key individuals

Why did this happen?

One possible explanation may lie in an email sent by Richards to Hynd on 1 December 2017, in response to which he sent her v.6.2.

“Would you be able to send me the latest version of the process,” Richards wrote. “I agreed with Perm Sec that I would test it with some key individuals.”

Four days later, the recast version made its first appearance.

Of course, correlation does not imply causation, and these may be two entirely unrelated events. Nonetheless, obvious questions arise.

Who were these key individuals? What was involved in “testing” the process with them? Did Richards proceed with the test? If so, what was the outcome of the testing? Did the process change as a result of the testing, and if so, how? Is the drastically recast process of 5 December 2017 the result of the test with key individuals which was proposed four days earlier?

One further document just published by the Committee may give some further clues as to what the answers to these questions might be.

On 29 November 2017, two days before Richards sent her “test” email to Hynd, a civil servant who had been appointed as a “sounding board ” for potential complaints had an email exchange with “Ms A”, an individual who subsequently made a formal complaint of harassment against Salmond.

The “sounding board” wrote: “As agreed I sent your narrative on in confidence to Nicky [Richards] and Judith [Mackinnon]. I have now been asked by Nicky and Judith if you would be prepared to speak to them following receipt of your narrative.”

The email continues: “As part of this discussion Nicky would like to share with you the developing policy for handling complaints against former and current ministers. This would give you an opportunity to test whether this would have helped at the time and also to consider next steps.”

Later that day, Ms A replied: “I’d be happy to speak to Nicky and Judith, and will text Nicky as suggested.”

The use of that word “test” is surely significant. Was Ms A one of the key individuals on whom the draft procedure was to be tested? Did she take part in a test? And was it in any way as a result of that testing that the draft procedure came to be so radically altered just six days later?

The First Minister

On 24 August 2018, Leslie Evans issued a statement in which she confirmed that the new procedure approved by Nicola Sturgeon on 20 December 2017 had been used to process two formal complaints against Alex Salmond. That procedure was, in all essential respects, the Richards recast of 5 December 2017.

Evans stated that she had advised Salmond two days previously of “my conclusions” and that “I was considering the public interest in making the fact of the complaints and investigation publically known.” She continued, “I am now able to confirm the fact of the complaints”.

The First Minister, she said, “has had no role in this process. I advised her of the conclusions of my investigation on Wednesday and she is of course aware that I am making this statement today.”

Salmond raised judicial review proceedings over the procedure used against him and the Scottish Government was subjected to a humiliating defeat. Again, Nicola Sturgeon, it would appear, played no role in that matter either.

Just as Leslie Evans, an unelected civil servant, had made all the decisions about the Salmond complaints so, it would appear, she made all the decisions about the judicial review too. It is a “well established principle,” the First Minister told the Parliament in her Statement of 8 January 2019, speaking of the Salmond complaints process and the Scottish Government’s concession of apparent bias, “that such a process must not just be impartial in fact, but must also be seen to be so. It was on that basis that the Permanent Secretary decided to settle the case…”

This is not the only part of Sturgeon’s Statement that seems other-worldly. There is a firm conviction of self-righteousness in all that she says, as if the Richards recast was something that came down from the mountain on tablets of stone, and that she had no choice but to accept.

Yes, she happily agrees with Jackson Carlaw, she didn’t know what was going on in her own Government but that was right and proper because she was forbidden from knowing by the procedure.

Yes, “of course” the Permanent Secretary did not inform her of the complaints against Salmond, because that would have been contrary to the procedure.

Yes, she was finally informed of the complaints by Salmond himself on 2 April 2018 but the “important principle” on which she was “absolutely satisfied” was that she did not “seek to intervene” because that was forbidden by the procedure.

And so on.

It is hard to know if she even remembers that as recently as 24 November 2017, when there is no doubt she saw and discussed at length Hynd’s fifth draft of the procedure, it was just as obvious that she would be informed of such complaints as soon as they were received, that she would have had a positive duty to “intervene” in the process in order to ensure Salmond’s cooperation, or even that she herself and not an unelected civil servant would have been the one to make the all-important decisions on the complaints.

But as is vividly demonstrated by the history of the drafting process set out in the documents now made public, the procedure used against Salmond did not come down from the mountain. It was recast dramatically on 5 December 2017 by mere human beings.

So again the questions arise:

If it was Sturgeon’s own idea to suddenly remove herself from the complaints process for former Ministers, why did she do it?

If it was not her idea, why did she go along with it?

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