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.
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:
“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].
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.