The Scottish Government have submitted a Statement to the Salmond inquiry in which they seek to explain why they waved the white flag in the judicial review without ever having done anything wrong.
As you might imagine, that’s not an easy task, so we probably shouldn’t be too surprised that the Statement makes no sense at all. Nonetheless, it’s a pretty bizarre document even in the context of the somewhat alternative world of senior civil servants who have titles like “Deputy Director for People Advice” and speak to each other about “granular levels” and “lived experience” and “our learning”.
I can’t think of any better way to demonstrate this than to take you through some key paragraphs of the Statement with my own commentary added, so here goes.
Three straightforward paragraphs to begin with. I have no quarrel with these:
“9. … On 22 August 2018, following the conclusion of the investigation, the Permanent Secretary notified the former First Minister of her decision. This took the form of a decision report and covering letter…
“10. Also on 23 August 2018, [Salmond’s lawyers] notified the Scottish Government that the former First Minister would raise a petition for judicial review of the decision, and on 31 August 2018 legal proceedings were raised by him.”
“23. On 27 September 2018 the Court issued a timetable order.… A substantive hearing was fixed for 4 days to start on 15 January 2019.”
The commission and diligence procedure
We know from a Freedom of Information request answered on 13 September 2019 that there were at least 12 meetings and/or conference calls between counsel and Scottish Government officials, Ministers and/or Special Advisers in the period up to 19 December 2018 when the commission and diligence procedure to recover evidence in the judicial review began. If there were perceived difficulties in the Government’s case to this point, the Statement gives no indication of them:
“26. As part of the process for the recovery of evidence, a Commission (a formal hearing) was held between 19 and 21 December 2018 before a Commissioner appointed by the court after the Petitioner [Salmond] had lodged a description of further evidence that he wanted to obtain from the Scottish Government (a specification of documents). The specification detailed specific source material that needed to be included in the search such as calendar entries and text messages.”
And then suddenly, without warning so it seems, everything just fell apart for the Scottish Government. Paragraph 26 continues:
“During the Commission it became apparent to the Scottish Government that the decision under review had been taken in circumstances in which an impression of partiality would have been created for a reasonable observer by the totality of the prior contact between the individual who was later appointed as the Scottish Government’s Investigating Officer [Judith Mackinnon] and the two members of staff who made formal complaints.”
Clearly, something dramatic must have happened during this three day procedure. After all, it’s no small matter when a “reasonable observer” would gain the impression that a procedure created and run by a brains trust of senior civil servants and lawyers, and approved by the First Minister herself, was biased and unfair. Indeed, all of the members of that brains trust, including the Investigating Officer herself, would surely have regarded themselves as “reasonable observers” who could stand back and spot apparent bias if it had been there to be reasonably observed prior to the Commission proceedings.
Well, let’s see.
“27. The Petitioner [Salmond] and Respondents [Scottish Government] agreed to settle the case on the basis of that acceptance. On 8 January 2019 they lodged a joint minute with the Court setting out the terms on which settlement of the case had been agreed, including that the decision under review was unlawful in that it was taken in circumstances which were ‘procedurally unfair and tainted by apparent bias’. The judge in the Court of Session accepted the joint minute and issued a final order bringing the case formally to an end.”
No, we’re no further forward. Yes, this is more confirmation of how dramatic events in the Commission must have been to bring about such a humiliating surrender but we still don’t know what those dramatic events were.
Maybe this will give us what we’re looking for:
“36. Paragraph 10 of the Procedure under which the complaints [against Salmond] were investigated states that the Investigating Officer ‘will have had no prior involvement with any aspect of the matter being raised.’ This reflects provision typically found in employment policies and refers to personal involvement in the matter being investigated. Reference to ‘prior involvement’ was intended to refer to involvement in the incident under investigation itself or its immediate handling. Later involvement, especially many years later, was not intended to compromise an Investigating Officer’s ability to be an impartial collector of facts unless there is some other factor which debars them. In this case, the Investigating Officer (the Deputy Director for People Advice) [Mackinnon] had had no involvement in any aspect of the events being investigated. She had not been part of the Scottish Government at the time of the events in question, which – along with her experience as an HR professional – had informed her appointment as Investigating Officer.”
Again, as far as the Scottish Government are concerned, neither those involved in drafting and approving paragraph 10 of the Procedure nor the Investigating Officer nor the “Head of People” who appointed her put a foot wrong here. Paragraph 10 is fine and dandy, Judith Mackinnon behaved like the consummate “HR Professional” that she is, and Nicola Richards clearly made a great choice in selecting her for the job.
The mystery of why the “reasonable observer” would see bias in any of this only deepens.
The mystery solved?
The next paragraph at least begins promisingly for our quest:
“37. The Deputy Director for People Advice, had contact, before her appointment as Investigating Officer, with the two members of staff who lodged concerns in advance of their decisions to make formal complaints.”
This surely must be it at last. Somehow in the course of the Commission, Mackinnon and others must have remembered events and documents about which they had completely forgotten up to that point and which they now realised would seem to “reasonable observers” (including themselves) to show bias.
Well, no. Paragraph 37 continues:
“This took the form of ensuring they could have access to support from other sources if required and that the process and choices available were understood by the two members of staff. This was in keeping with the role for the Investigating Officer set out in more detail in earlier drafts of the procedure, and in line with her professional HR role. The individuals also shared reflections about what they thought might prevent harassment occurring in the future.”
This can’t possibly be what caused the towel to be thrown in. Not only was Mackinnon acting “in keeping with the role for the Investigating Officer” but she was “in line with her professional HR role” too. What “reasonable observer” could possibly find fault with that?
On then to the next paragraph:
“38. As noted in paragraph 26 above, previously undisclosed documents were provided as part of the Commission for Evidence held between 19 and 21 December in relation to the prior contact between the individual who was subsequently appointed as the Investigating Officer and the two complainers. These documents indicated the nature of this contact was in line with that described in paragraph 37.”
Again, it could hardly be clearer that these “previously undisclosed documents” weren’t the problem for the Scottish Government. Far from undermining anything asserted in the previous paragraph, these documents were themselves “in line” with it; that is to say, they showed that Mackinnon acted entirely “in keeping” with her role as Investigating Officer and “in line” with her role as an “HR professional”.
On again then:
“39. Nevertheless, it became apparent to the Scottish Government, based on a review of the case which was informed by legal advice, that …, having regard to the totality of the Investigating Officer’s dealings with the complainers before her appointment as Investigating Officer, the reasonable observer would conclude that there was a real possibility that she could not act impartially as she was required to do by the procedure.”
Has any word of the English language ever done more work than that “Nevertheless”?
I have searched for anything in the Statement besides the paragraphs set out above which might add anything at all to the “totality of the Investigating Officer’s dealings with the complainers” as described by the Scottish Government. I invite readers of this blog to do the same.
It just isn’t there.
The “totality of the Investigating Officer’s dealings with the complainers”, according to the Scottish Government, was a totality of exemplary HR professionalism and investigatory rectitude. Nevertheless, it had to be conceded that this surely most unreasonable of “reasonable observers” would, for reasons that remain utterly mysterious, see bias.
And then this:
“40. The Permanent Secretary therefore concluded on 2 January 2019 that the Scottish Government should concede the judicial review proceedings because of the apparent bias issue (described in paragraph 39 above).”
Everyone in here is innocent
I don’t know what else to tell you.
Clearly the Scottish Government have done nothing wrong whatsoever and yet “based on a review of the case which was informed by legal advice” they’ve been prevailed upon to cop a plea and hand over a half million pounds of our money.
The words of Morgan Freeman’s character in Shawshank come to mind.