In my first post on this blog, I detailed how the Scottish Government procedure for handling complaints against former Ministers was radically “recast” in early December 2017 so that, bizarrely, it now excluded the First Minister completely from any role in it.
The “recast” turned over the entire responsibility for investigating complaints and deciding whether they were “well-founded” to the Permanent Secretary, an unelected civil servant.
It is unprecedented for a First Minister or Prime Minister to be so excluded from such a procedure and, needless to say, no other government anywhere in the world has copied it since Scotland did it.
Indeed, the Ministerial Code which regulates the Scottish Government, and the equivalent UK Government Code, on which the Scottish version is closely based, both make clear in terms that this politicisation of civil servants is forbidden where current Ministers are concerned.
In the UK Government version:
“It is not the role of the Cabinet Secretary or other officials to enforce the Code. If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary, feels that it warrants further investigation, he may ask the Cabinet Office to investigate the facts of the case…”
And in the (predictably woollier) Scottish Government version:
“The Permanent Secretary may provide Ministers with advice on matters which the Code covers and will ensure procedures are in place to support compliance with the Code. It is not, however, the role of the Permanent Secretary or other officials to enforce the Code.”
There is not the slightest reason why that prohibition should not apply equally to matters concerning former Ministers. Indeed, there are many obvious reasons why it should apply with extra rigour where former Ministers are concerned.
Given all of that, I asked why Nicola Sturgeon would have ordered her own exclusion from the procedure or, at the very least, gone along with that exclusion.
The answer is now pretty clear, and another blunder by Sturgeon’s bungling civil servants helps make it clearer than ever.
The route map
The Scottish Government statement to the inquiry says of work done on the procedure up to 7 November 2017:
“This work … included an assessment of the available mechanisms for individuals to raise concerns about sexual harassment. This resulted in the production of a “route map” which described how complaints of sexual harassment might be raised. The route map sought to identify the various routes that complaints at that time could come through, and which policies and procedures were in place to deal with them.”
The emails referred to by the statement do indeed include a very rudimentary route map. However, the route map to which we are then directed by the Scottish Government is not this early, rudimentary version at all, but rather a much later, much more developed version.
Eagle-eyed readers of this blog who care to look will be able to spot how we know this:
The route map produced by the Scottish Government as evidencing work done by 7 November 2017 is dated 31 January 2018.
In fairness, that’s just the minor, irritating incompetence we’ve come to expect from them by now. But what gives rise to this small error is actually a larger and much more significant blunder.
The route map produced to the inquiry does indeed form part of events taking place on 31 January 2018. Documents referred to in other footnotes to the Government’s statement give its proper context.
On that date, an email from a redacted “Head of Branch” of the “People Directorate” to a redacted list of recipients explains that the route map is being attached so that it can be uploaded to the internal Scottish Government system for providing information to employees.
The various complaints procedures summarised in the route map, including the procedure for harassment complaints against former Ministers, are then also to be attached so they can be clicked on as links.
And here’s where the blunder comes in.
The procedure attached is the “recast” procedure approved by Nicola Sturgeon on 20 December 2017, and in which she excluded herself completely from any role, but the route map still shows the old policy, exactly as it existed before she did that.
Employees are thus to be treated to one link to the actual approved policy of 20 December 2017, and another link to this route map which sets out what the policy was before Sturgeon was excluded from it.
I recommend reading the route map’s admirably concise summary of what the procedure was before the December recast as a handy reminder of just how bizarre it was for that procedure to be have been ripped up and thrown away in favour of the unlawful shambles which ultimately resulted in the Scottish Government’s humiliation at judicial review.
As you’ll see, the route map has three sets of boxes which show the progression of complaints under the appropriate headings for each box:
“Subject of complaint” leads to “Roles / responsibilities”, and finally to “Potential Outcomes if founded”.
When the “Subject of complaint” is a “complaint is about a former Minister”, then “Roles /responsibilities” are as follows:
“Permanent Secretary will notify FM.
“Director of People will designate Senior Civil Servant to investigate and prepare report for Perm Sec.
“Perm Sec will consider report and make recommendations.”
Clearly, then, under the pre-recast policy set out in the route map, the “recommendations” of the “Perm Sec” were just that.
They were not decisions.
In particular, they were not decisions about whether a complaint was “well-founded”.
The route map then takes us to the third and final box: “Potential Outcomes if founded”.
Again, it couldn’t be clearer under the route map what it takes for a complaint to become “founded”. The entry in the box is this:
“FM to take action if former minister within party”
In other words, under the policy set out here — the policy as it existed prior to the recast (and still, so it seems, in some people’s minds even after it) — the First Minister was firstly to consider the report from the Senior Civil Servant and the recommendations from the Permanent Secretary arising out of that report.
The First Minister, and the First Minister alone, was then to decide if the complaint was “founded “ and, if so, what action was to be taken on it.
One further striking thing that might be noted about this is that – making the huge allowance for present purposes that the procedure for complaints against former Ministers set out in the route map was otherwise lawful – this procedure does actually comply with the Ministerial Code.
We can only guess at what employees considering a complaint must have made of the two contradictory sets of advice sent to them simultaneously by way of the route map and the recast policy itself.
But the blunder of sending out the pre-recast route map provides the clearest possible reminder of what the policy should have been.
And now Nicola Sturgeon herself has as good as told us why it became something very different.
What Sturgeon has (so far) told the inquiry
According to her written statement provided to the inquiry and finally published last week, by the time drafting of the complaints procedure began in early November 2017, Nicola Sturgeon knew that allegations against Salmond were coming.
She was, she says, told then about “allegations of sexual misconduct on the part of Alex Salmond”.
She continues: “I spoke to Mr Salmond about this allegation at the time. He denied it…”
She was therefore well aware that the new complaints procedure being drafted then by her civil servants was likely to be dealing in due course with complaints against Salmond.
Again, she says so in terms: “[A]ll of the circumstances surrounding this episode left me with a lingering concern that allegations about Mr Salmond could materialise at some stage.”
As a result, according to Sturgeon’s own account: “I sought to ensure that the Scottish Government developed a process that allowed allegations of sexual harassment – including allegations of a historic nature – to be fully and fairly considered.”
She concludes: “I did not do this because I had a concern … that allegations about my predecessor could materialise. But nor did I, in any way, allow such concern to lead me to limit the scope of the procedure.”
As is now obvious, both of these claims are simply untrue.
Sturgeon did instruct that the procedure was to be developed in the way it was so that it could deal with her “concern” about Salmond.
She did “limit the scope of the procedure” because of that concern.
She ensured that her Government “developed a process” such that Alex Salmond’s fate would be decided, to all appearances at least, by unelected civil servants. She “limited the scope” of the procedure by removing herself completely from it.
There is simply no other reasonable explanation for why the procedure changed so dramatically in December 2017.
So, although it seems unaccountable to many, there’s really no mystery to why Sturgeon continues to stand by her hapless civil servants as more and more shocking detail comes to light about their unlawful work on her behalf.
Every unlawful thing those civil servants did was done by them so that Sturgeon would not have to do it herself.
It was done so that she could plausibly deny, as she does to this day, that she had anything to do with it.
These servants of hers have already, quite rightly, taken a great deal of criticism for their bad faith and incompetence, and as the inquiry continues, they can surely expect a great deal more.
The unswerving loyalty of the person who set them up for this fall is, we should grant, the very least they can expect from her.