It won’t surprise readers of this blog to learn that two of the Scottish Government’s most senior officials – Head of “People Advice” Judith Mackinnon and Permanent Secretary Leslie Evans – have once again given evidence to the Salmond inquiry which is contrary to the facts.
In this and the next couple of posts I’ll detail some of the relevant facts and evidence, and I’ll try to explain where this quite extraordinary behaviour by the Scottish Government fits into their ongoing war on Alex Salmond, and on the truth.
In January 2018, Mackinnon was engaged in an email correspondence with the person designated in the heavily redacted Scottish Government documents produced for the Salmond inquiry as “Head of Branch, People Directorate 2”.
The subject of the correspondence had the catchy title “Complaints against Ministers Tracked version which shows union comments and final version which went to FM”.
The context of the correspondence was that the First Minister and her Permanent Secretary, in their panic to have Sturgeon removed from any role in the procedure at the earliest possible date, had put everyone under extreme pressure in the previous month to have the process finalised and approved. This had resulted, among other things, in a rushed and derisory “consultation” with the unions in which their last-minute comments had been tracked by HR onto a draft of the procedure. A few cosmetic changes had then been made in response before the procedure was hastily approved on the very same morning that the final union comments were received.
A further result of this was that the unions had not even been informed by the time of the January correspondence what the approved procedure was, and so the delicate task of pretending that their voices had somehow been heard and that this had been any kind of normal negotiation with management on a subject of considerable import for their members now fell to Mackinnon and her HR colleagues.
In carrying out this task, Mackinnon, who by this stage had already had extensive interaction with complainers Ms A and Ms B, and who would shortly become the Investigating Officer of their complaints, was also pursuing what was by now a well-established HR view, one that had been clearly set out in an email of 23 November 2017 from her boss Nicola Richards to Permanent Secretary Evans, and copied to Mackinnon:
“We would need to consult with the individual before disclosing to another party or the police because of the risk of the matter getting into the press and the individuals being identified.
“We have a duty of care for our staff which means we shouldn’t do something that puts them at risk – so if they don’t want us to share information or go to the police, it would be very difficult to justifying [sic] doing so (without putting them at risk of being identified and wider impacts).”
Despite the usual management-speak, that seems pretty clear. If a complainer doesn’t want to go to the police, it would be very difficult for the Scottish Government to justify doing so.
This is not just for the reason which is obvious to any lawyer, and indeed to any person endowed with an ounce of common sense, namely that people should be free to decide for themselves what they want to do about such important matters which will inevitably have the most profound effect on their lives.
It is also because going against a complainer’s expressed wishes in such a matter would patently breach the Scottish Government’s much-trumpeted “duty of care” – the Holy Grail of duties if the constant citing of it by Evans and her crew to justify their every action is anything to go by.
Nonetheless, it’s only fair to point out that this same email indicates that all of the key players in the process – Evans, Richards, Russell, Allison and Mackinnon herself – were due to have a further discussion of this and other important topics:
“Perm Sec may want to discuss with Gillian, Barbara, Judith and I next week so that we can reach a view on the best way ahead.”
It can hardly be doubted that such a discussion took place nor that a final and very clear view was reached on it because it is that clear and final view that Mackinnon then set out in her January correspondence with “Head of Branch, People Directorate 2”.
On 8 January 2018, Mackinnon wrote:
“… have added one comment in the last paragraph (nothing to do with the unions comments) – [Redacted]. We will have to draw James Hynds attention to this as it is a change.”
Mackinnon is referring to paragraph 19 of the approved procedure, one of two paragraphs covering “engagement with the police”. (It may be noted in passing that this reference to changing the procedure long after it was supposedly set in stone on 20 December 2017 is far from unusual in the emails of those involved, a subject considered briefly again below.)
The paragraph is as follows:
“19. Throughout the process, all available steps will be taken to support the staff member and ensure they are protected from any harmful behaviour. However, if at any point it becomes apparent to the SG that criminal behaviour might have occurred the SG may bring the matter directly to the attention of the Police. Also, if it becomes apparent that the matter being raised is part of a wider pattern of behaviour it may be necessary for the SG to consider involving the Police in light of the information provided. Should either of these steps be necessary the staff member will be advised and supported throughout.”
In their tracked comments to that paragraph (and probably on the basis that they thought they were entering a dialogue with responsible employers as opposed to taking their one and only shot at being heard by zealots), the unions had written:
“What is HR’s role?”
Mackinnon now added her own comment right underneath that one:
“Actually, we cannot notify the police if the victim/staff member doesn’t want us to.”
So could that be any clearer? We do not have to guess what the outcome was of the discussions between all of the key players as mooted back in the email of 23 November.
Here is their unequivocal commitment to complainers in black and white.
The Scottish Government cannot – and therefore, of course, will not – notify the police of a specific complaint if the complainer does not want them to.
On 9 January 2018, “Head of Branch, People Directorate 2” replied to Mackinnon:
“Thanks Judith. We’ll need to pick it up with them [the unions]. I guess the drafting may be wide enough to allow for the situation you envisage. Maybe we should put an extra sentence in to note that we don’t inform the police without the employee’s consent?”
Note what is being agreed here. An “extra sentence” will clarify the decided view of the Scottish Government that it cannot refer specific complaints to the police without the consent of the complainer but, even without such a clarifying sentence, “the drafting may be wide enough” that this view can be taken as forming part of the existing wording anyway.
As a lawyer of some experience in such matters, I am happy to confirm that the view of “Head of Branch, People Directorate 2” is correct. Paragraph 19 says only that “the SG may bring the matter directly to the attention of the Police”. As long as everyone involved in the process understands that the specific complaint may only be referred directly by the SG to the police with the consent of the complainer, there is no need for any revision.
Nonetheless, Mackinnon persisted. An hour later on 9 January 2018, she responded to the question about adding the extra sentence:
“That would do it I think.”
Four hours later, on the same date, “Head of Branch, People Directorate 2” came back to Mackinnon:
“See attached. We will need to pick up with James H on Thursday.”
This is the second reference in the correspondence to James Hynd, the Cabinet Secretary, who drafted all of the versions of the procedure before the dramatic Evans “recast” described elsewhere on this blog rendered him largely redundant, but who was still consulted, for form’s sake as much as anything it would seem, on such matters.
Of much greater significance is the attachment, the same tracked version of the procedure that had been going back and forth between them, but which now featured a revised paragraph 19 with this “extra sentence” duly added in accordance with Mackinnon’s wishes:
“SG as employer will not refer specific cases to the police without the knowledge/consent of the employee.”
So then paragraph 19, as revised at the specific request of Mackinnon, now read as follows:
“19. Throughout the process, all available steps will be taken to support the staff member and ensure they are protected from any harmful behaviour. However, if at any point it becomes apparent to the SG that criminal behaviour might have occurred the SG may bring the matter directly to the attention of the Police. Also, if it becomes apparent that the matter being raised is part of a wider pattern of behaviour it may be necessary for the SG to consider involving the Police in light of the information provided. SG as employer will not refer specific cases to the police without the knowledge/consent of the employee. Should either of these steps be necessary the staff member will be advised and supported throughout.”
As usual in the inquiry proceedings, we do not have the paperwork for the meeting with James Hynd or other follow-up on this chapter, notwithstanding that it is central to the inquiry’s remit and would no doubt be very easy to locate and provide. (I’m the world’s biggest Luddite but even I fancy my chances with a simple document search for the subject heading “Complaints against Ministers Tracked version which shows union comments and final version which went to FM”.)
However, we know that Mackinnon’s proposed revision did not make it into the finally published procedure, and the reasons for that are hardly difficult to divine.
From mid-November onwards, it had become more and more critical to Evans and Sturgeon to have a decided procedure which gave Sturgeon plausible deniability of her knowledge of the complaints against Salmond just as soon as anything remotely coherent could be cobbled together.
After 20 December 2017, when this was, at least in their eyes, accomplished, it was seen as risking the whole project to change so much as a comma in the 20 December version. That’s why, for example, something as central as the description of what became Mackinnon’s role has her wrongly described in the crucial paragraph 11 of the published procedure as the “senior officer” despite the fact that, as a sop to one of the union suggestions, “senior officer” was changed elsewhere in the procedure to “Investigating Officer.”
Evidently, even to rectify such an obvious inconsistency in a key term was deemed too risky.
(As noted above, though, it’s clear that not everyone got the memo about this, as a rather extraordinary chain of correspondence involving “Head of Branch, People Directorate 1” demonstrates. His or her drafts of the procedure, produced in late January, well after the procedure was supposedly set in stone, cheerfully sought to re-write the whole procedure to cover all complaints against Ministers, was sent to the various key players, and appears to have been left to die quietly on the vine.)
The evidence: Judith Mackinnon
This is part of Judith Mackinnon’s evidence on oath before a Parliamentary Committee on 1 December 2020:
“Margaret Mitchell: Right. The referral [of the Salmond complainers’ specific complaints to the police] was not considered until a little later, then. Should it have been considered at the point at which the concern was raised?
Judith Mackinnon: Do you mean at the stage at which the initial formal complaint came in?
Margaret Mitchell: Yes
Judith Mackinnon: I am not aware that it was considered. I think that we were very much in the fact-finding stage. I do not remember an actual conversation, when the complaints came in, about reporting at that stage to the police.
Margaret Mitchell: Okay—but an option to report to the police was part of the route map, was it not?
Judith Mackinnon: Yes, I believe so.
Margaret Mitchell: So, that must have formed part of the thinking and discussions as the process was developed—and certainly when the complaints were received and the investigation took place.
Judith Mackinnon: I think that once the facts had been gathered, and the full picture was known, that was the stage at which the permanent secretary, as the deciding officer, might have considered the appropriateness of referring the matter to the police.”
That evidence is contrary to the facts.
Ms A lodged her formal complaint on 16 January 2018. Mackinnon was appointed Investigating Officer on the same day.
Ms B lodged her formal complaint, written for her by Mackinnon, on 23 January 2018.
These complaints “came in” just eight and fifteen days respectively after Mackinnon specifically asserted in writing that:
“… we cannot notify the police if the victim/staff member doesn’t want us to.”
It is inconceivable that she could have forgotten, then or now, that this was her clear and decided view.
The complaints “came in” just seven and fourteen days respectively after Mackinnon’s own request for an “extra sentence” in paragraph 19 was answered with the following:
“SG as employer will not refer specific cases to the police without the … consent of the employee.”
It is inconceivable that Mackinnon could have forgotten, then or now, that this was her clear and decided view of how paragraph 19 was to be interpreted and applied.
Mackinnon’s evidence that she was not aware of the issue of referral to the police being considered at the time when the complaints were lodged is contrary to the facts.
As the process was being developed, Mackinnon received and endorsed her boss’s email of 23 November 2017:
“We would need to consult with the individual before disclosing to … the police because of the risk of the matter getting into the press and the individuals being identified.
“… if they don’t want us to share information or go to the police, it would be very difficult to justifying [sic] doing so …”
It is inconceivable that Mackinnon could have forgotten, then or now, that this was the clear view being taken by herself and her Scottish Government colleagues on this matter as the policy was being developed in November 2017.
Mackinnon’s evidence that referral of complaints to the police did not form part of the thinking and discussions as the process was developed, and certainly when the complaints were received and the investigation took place, is contrary to the facts.
Mackinnon’s evidence that the appropriateness of referring the matter to the police was not considered until the stage when the facts had been gathered, and the full picture was known, is also contrary to the facts.
The evidence: Leslie Evans
This is part of Leslie Evans’s evidence on affirmation before a Parliamentary Committee on 12 January 2021:
“Ms Mitchell’s main point, if I picked it up correctly, is about the referral of the case to Police Scotland and the Crown Office and whether that was against the wishes of the complainers. It was against the wishes of the complainers—I understand that. The decision to refer the matter to the Crown Office was consistent with the procedure. You will have seen that in paragraph 19 of the procedure.”
The fact is that as at 9 January 2018, the Scottish Government’s clear and decided interpretation of paragraph 19 of the procedure was that they could not, and should not, refer specific complaints to the police without the express consent of the complainer.
The Scottish Government have produced no evidence to suggest that this interpretation was ever challenged or amended.
Evans’s evidence is contrary to the facts.
This is a further part of Evans’s evidence:
“… it says in the procedure that the Scottish Government may decide to refer a complaint to the police even if the complainer does not want it.”
Neither paragraph 19 nor any other part of the procedure says anything of the kind. The Scottish Government’s own interpretation of their own procedure in January 2018 was exactly the opposite of what Evans claims in her evidence on affirmation.
Evans’s evidence is contrary to the facts.
The war on Alex Salmond, and on the truth
Regular readers of this blog will have worked out by now what lies behind all that is set out above. It’s purely and simply part of the self-described “war” being waged on Alex Salmond by Nicola Sturgeon, Leslie Evans and all of their hirelings.
In November and December 2017 and in January 2018, it was never anticipated by any of them that a report to the police and consequent criminal investigation would be necessary for them to achieve their principal aims of establishing beyond all doubt their Me Too credentials while insulating the First Minister entirely from any criticism that might come from ruining beyond repair the man whom she herself called her mentor and person closest to her of anyone outside her family.
As I’ve detailed in earlier posts, and will return to again soon, this was achieved in the truly remarkable “recast” of the complaints procedure, tailored entirely and solely to get Alex Salmond, which was completed at nearly midnight on 5 December 2017, removing the First Minister of Scotland completely from the procedures of her own Government and doing away also with every last trace of procedural fairness for Alex Salmond.
It is hardly surprising then that the procedure at that stage still recognised the very obvious fact that whether to report things to the police is, and should be, entirely a matter for the responsible adult concerned. That fair and reasonable component of it was of no moment to them at the time.
By now we all know what changed in the months that followed.
Between January and August 2018, it became increasingly obvious to the whole sorry gang that they were in the most serious trouble. This was not least because Alex Salmond was sharing with them the advice of his senior counsel, which spelled out exactly why this was so, even on the very limited information Salmond’s defence then had.
Given that they themselves must have at least suspected that this was just the tip of the iceberg of what they’d perpetrated, and that things were exponentially worse for them than even Salmond knew – a suspicion which would soon be confirmed for them by their own senior counsel, when competent external legal advice was finally taken – it was obvious that an exit strategy was needed, and needed urgently.
And that of course is where the clear and decided Scottish Government policy on referral to the police, and of course the wishes of the complainers, were unceremoniously set aside.
If Salmond could be charged with criminal offences, the civil court proceedings which were inevitably coming could be sidelined – “sisted”, or suspended, to use the legal term – while criminal proceedings took their course. The gleeful and hysterical press coverage that would then be forthcoming from the ever-reliable Scottish media would ensure that the war was already all but won.
If Salmond could then be convicted of even one of those offences, then the war would be won in a rout.
Who, after all, would care what wee corners the Scottish Government might have cut in their righteous crusade to get justice for these brave complainers against a powerful sex offender?
The playbook could not be more obvious, nor is it the first time it has been run, by any means. It was only unfortunate for them that the integrity of their own counsel forced them to concede the judicial review just days short of the Salmond charges, and a decisive victory in the first battle of the war.
How they must have cursed.
There’s a lot more to follow, so please stay tuned.