Gordon Dangerfield

Text messages now published in full by the Scottish Parliament show conclusively that Liz Lloyd, Special Adviser and Chief of Staff to Nicola Sturgeon, did interfere in the Salmond complaints process, contrary to vehement denials made on Lloyd’s behalf in March this year.

Lloyd has previously claimed that she only suspected there may be a formal complaint against Salmond some time in March 2018, that she did not know the full details of any complaint, and that she did not tell Sturgeon of her suspicions.

But the messages strongly suggest that Lloyd knew about the Salmond complaints in early February 2018 and that she was acting on behalf of her boss, the First Minister, when she interfered in the complaints investigation at that time.

Sturgeon herself told the Scottish Parliament that she knew nothing of the complaints until 2 April 2018 but later had to admit in her evidence on affirmation to the Fabiani Committee that she had in fact discussed them at a meeting on 29 March 2018, a meeting that she claimed had slipped her mind when she gave false information to the Parliament.

The messages also contradict the evidence to the Fabiani inquiry of top civil servant Barbara Allison, who swore on oath that she had no involvement in the Salmond investigation beyond “early contact” with the complainers in November 2017.

As the messages make quite clear, Allison was still playing an active and important role in the Salmond investigation in February 2018.

The background to the February text messages

In January 2018, Judith Mackinnon was appointed as Investigating Officer for the Salmond complaints. Mackinnon was then Head of People Advice, a very senior position in the Human Resources (HR) department of the Scottish Government. She was personally selected for the role of Investigating Officer by Permanent Secretary Leslie Evans, a selection that has, among many other things, cost the Scottish taxpayer well over a million pounds to date, and will probably cost a good deal more in the future.

The complaints being investigated were those of civil servants Ms A and Ms B, both of whom later became complainers (under different letters of the alphabet) in Alex Salmond’s criminal trial. The anonymity of Ms A and Ms B is protected by two separate court orders and to disclose the identities of either would be a serious contempt of court.

On 5 February 2018, a Ms X was interviewed by Mackinnon’s investigation on the basis that she might be able to corroborate aspects of the complaints of Ms A and Ms B. Although she ultimately refused to provide information to the Scottish Government investigation, Ms X later became a complainer herself in the criminal trial (again, under a different letter of the alphabet). Her anonymity too is thus protected by a court order.

In common with other Salmond complainers, and on the basis of information which she herself has chosen to make public, Ms X was self-evidently someone who was close to Liz Lloyd and by extension to Nicola Sturgeon.

Liz Lloyd’s first text message

On 6 February 2018, Liz Lloyd texted Barbara Allison as follows:

“[Ms X] will ask to see you today. Best outcome RE her is that as HR told her yesterday they didn’t need her to corroborate anything and as she told them she doesn’t want to tell her story…that by the end of today HR decide they don’t need to speak to her and cancel it. She won’t say no because she doesn’t want it to look like [she] wouldn’t testify.”

I’ll unpack that message in much greater detail below, but you won’t need me to tell you what it means in essence:

The First Minister’s Chief of Staff who, like her boss, was supposed to know nothing about the Salmond investigation, was directing a senior civil servant in the outcome she – and by clear implication, her boss – wanted to achieve regarding the evidence of a potential witness.

And the outcome she wanted for Ms X was one where Mackinnon’s investigation of her evidence was shut down forthwith – “cancel it,” Lloyd says, “by the end of today”.

On 18 March last year, after fragments of the now published messages were made public, Ms X chose to issue a statement through Scottish Government mouthpiece Rape Crisis Scotland. In that statement, she and Liz Lloyd sought to explain this extraordinary intervention by the First Minister’s Chief of Staff in the Salmond investigation process.

(In a twist appreciated by fans of irony, Rape Crisis Scotland sent out an initial version of the statement which unwittingly disclosed Ms X’s identity to all its press recipients, then issued a second, identity-free version and asked all recipients of the first version to destroy it.)

Ms X began by stating that claims of “interference” by Liz Lloyd in the Salmond process were “fundamentally untrue” and that such claims “deliberately misrepresented” the content of the messages.

Well, we’ll go on to the other messages shortly. But let’s just pause here and consider Liz Lloyd’s message all on its own.

She tells Allison in terms what the “best outcome” of this part of Mackinnon’s investigation process should be.

She tells Allison in terms that she wants this part of the investigation cancelled that very day.

And she is the First Minister’s Chief of Staff, with all the power to influence and direct events that the title carries with it.

If that’s not interference in the Salmond investigation, even in the post-truth world of the Scottish Government and Rape Crisis Scotland, then I truly don’t know what is.

The world according to Ms X

Ms X’s public statement continued:

“In January 2018 I was approached by Scottish Government HR regarding an investigation they were undertaking into a complaint about Alex Salmond’s behaviour during his time as First Minister.

“I had been named as someone who experienced such behaviour in statements obtained during the course of HR’s investigation.

“After discussion with HR, I decided I did not in any way wish to share with them my own personal experiences, however I also did not want to obstruct an investigation. I did not know if I was obliged to cooperate after being asked to.

“I decided to raise the matter with a trusted senior person in government, Liz Lloyd, to gain advice and an understanding of my obligations.

“I was extremely conscious of the sensitivity of the investigation and I, therefore, did not tell Liz who the complaint was from, who it was about or the nature of the complaint.”

Let’s pause again there. I’ve expressed my incredulity at this last claim in some detail in a previous post, and if it’s possible, I’m even more incredulous now that we have Lloyd’s full message.

We’re asked to believe that Liz Lloyd, a “trusted” colleague of Ms X, who is self-evidently herself a senior figure in the Scottish Government, was both willing and able to send the message above – with all its particular details of the investigation and its specific mention of corroboration of ongoing complaints – without finding out from Ms X any details at all of what she was getting herself into or checking in any way whether her intervention in this mystery investigation was even remotely appropriate.

If that is true, it would be bad enough and, in any organisation other than the Scottish Government, probably enough in itself to get Liz Lloyd disciplined or sacked, but the merest common sense, and everything that now follows, tells us surely that it just can’t be true.

Ms X’s statement continued:

“I informed her I had been approached by HR in relation to a current investigation. I said I had been asked if I wanted to make a complaint and made it clear to her I did not want to, but I was concerned that if I didn’t I may be impeding an investigation.

“She offered to convey my concerns and what I wanted to happen to an appropriate senior civil servant, who was the most appropriate person to discuss the issue with. I agreed to this course of action. This was not ‘interfering’ but acting in line with my wishes.”

This, then, is the standard of logic and rationality at the uppermost echelons of the Scottish Government. The clearest possible interference by Lloyd in Mackinnon’s investigation – interference specifically labelled as such by Mackinnon herself, as we’ll come to shortly – is not in fact interference, according to Ms X, because it was carried out “in line with my wishes”.

Next time I have a client charged with theft, remind me to tell the court that it can’t be theft because he was only acting in line with his pal’s wishes.

Enter Barbara Allison

Barbara Allison is the senior civil servant to whom Ms X refers in her statement as “the most appropriate person to discuss the issue with”.

Regular readers of this blog will be all too familiar with Allison and her doings but for new readers she’s probably best known in the present context as the former director of HR who was appointed in secret by Leslie Evans in November 2017 to provide “pastoral care” for potential complainers, and as the person to whom Evans sent her infamous text on the day the Salmond judicial review was conceded:

“Thanks Barbara—battle maybe lost but not the war.”

On receiving Lloyd’s message about Ms X on 6 February 2018, Allison forwarded it on to Mackinnon, along with her own message:

“[Ms X] is coming to see me at [time redacted]. What would you want me to tell her? To corroborate info but agree it can not be used in info sent to him? Or should we ‘stand her down’? B x”

Let’s start with the last sentence of the message, and that highly significant use of “we”.

There is simply no ambiguity here. “We” in this context must comprise Allison and Mackinnon at the very least, and I’d say it extends pretty clearly in the context to the whole of Mackinnon’s investigative team, however large or small that may have been.

When Allison asks whether “we” should “stand her down”, she is not – and cannot be – asking the question as a disinterested third party offering pastoral support to Ms X in a process in which she is playing no other part.

Plainly, unambiguously, Allison is positioning herself as part of Mackinnon’s investigative process, and is asking Mackinnon, as a player in that investigative process, what “we” should do.

It is in that unambiguous context that Allison asks Mackinnon her two earlier questions, and makes her own very specific suggestion of what “we” should tell Ms X about how her evidence will be used:

“To corroborate info but agree it can not be used in info sent to him?”

The “him” referred to here is Alex Salmond, the subject of the complaints being investigated, as Ms X was by her own admission well aware.

Given then that the message being discussed – the one directing Allison as to the “best outcome” – had come not from Ms X herself but from Liz Lloyd, and given that, according to Ms X, Lloyd had no idea of the context in which she was seeking that outcome, might we not expect some intimation of that in this message from Allison to Mackinnon?

Might we not expect Allison to try to to ensure that Lloyd continued to be shielded from this highly confidential knowledge in any further action Mackinnon might take or any reply she might make to Lloyd?

At the very least, might we not expect some kind of warning from Allison to Mackinnon of the need to keep from Lloyd and her boss at all costs the identity of “him”, of the nature of the complaints for which Ms X was being asked to “corroborate info”, and of the proposed agreement with Ms X that such “info”, once used, would not be “sent to him”?

Of course, there is no such intimation or warning, because the idea that Lloyd was not already aware of every salient detail of what this process was, and against whom it was being directed, would have been as ludicrous then to Allison and Mackinnon as it is to the rest of us now.

Apart from anything else, they would both surely have assumed, as any rational person would assume, that the First Minister’s Chief of Staff would not be getting involved in such a momentous and sensitive investigation unless both she and her boss were fully aware of what they were asking of Allison and Mackinnon, and the full context in which they were asking it.

That they were aware of this is yet further evidenced by Mackinnon’s response.

What Allison said on oath

Before coming to that, however, let’s pause again to remember what Allison told the Fabiani inquiry, on oath, on 15 September 2020 about her role in the Salmond investigation:

“I had some early contact with the two individuals who ultimately became complainants under the policy for the handling of harassment complaints. Other than that early initial contact, I had no involvement in the investigation.”

And again on 27 October 2020:

“To the extent that it might be relevant to today’s session, although I had early and limited contact with the complainers, I was not involved in the investigation process.”

I’m sure you don’t need me to tell you that this evidence, given on oath, is directly contradicted by the terms of Allison’s own message above.

Contrary to her evidence to the inquiry, Allison was involved in the investigative process long after her “early contact” with the complainers Ms A and Ms B.

What is more, her involvement was not in some trivial matter of procedure or “pastoral care” of a complainer.

As is set out in black and white above, Allison was involved on 6 February 2018 in deciding, along with the Investigating Officer, what “we” should do about a potentially important witness whose evidence the First Minister’s Chief of Staff was overtly seeking to shut down and “cancel”.

In her October session of evidence – a session convened in part so that she could now be allowed to “remember” the “battle maybe lost but not the war” text which she had unaccountably denied ever receiving in her first session of evidence to the inquiry – Allison had the following exchange with MSP Jackie Baillie:

Jackie Baillie:… Have you ever expressed concern, or had concerns expressed to you, about interference by special advisers in the civil service complaints process?

Barbara Allison: Could you ask me that again?

Jackie Baillie: Have you ever expressed concern, or had concerns expressed to you, about interference by special advisers in the civil service complaints process?

Barbara Allison: During the investigation, there was some correspondence between me and some other people about somebody who was perhaps going to give evidence or be a witness. In my pastoral care role, I was asked whether I could offer support at that time. That is probably what you are referring to.

Jackie Baillie: I will leave it there for now. Thank you.

I don’t know what Jackie Baillie was referring to, but I do know it can’t have been Allison’s actions on 6 February 2018, at least if her answer to Baillie was truthful.

Because to describe Allison’s actions on that day as no more nor less than giving “pastoral care” and “support” to “somebody who was perhaps going to give evidence or be a witness” is to give up all belief that the English language actually means anything.

It is, in short, to enter the wacky, black-means-white world of the present Scottish Government.

Mackinnon’s response to Allison

Mackinnon responded to Allison that same day, 6 February 2018, as follows:

“[Ms X] did not tell us she didn’t want to tell her story or participate. She told us she was concerned and needed to consider. Liz interference v bad – promoting a climate that doesn’t encourage people to be supported to speak out. This contradicts the FMs own public statements about sexual harassment and doesn’t allow Perm sec to fulfil her duty of care. Bottom line is we can’t make her talk to us – but at least we needs reason why she won’t. Not for us to stand her down – she needs to decide she’d rather not and tell us. Think we need her to give us on writing that she doesn’t want to take part. Grrr. Jx”

If we were in any doubt about how Mackinnon viewed Lloyd’s extraordinary intervention, that last “sentence” is pretty unmissable:

“Grrr.”

So let’s unpack the rest.

Mackinnon begins by flatly contradicting Lloyd’s version of Ms X’s meeting with “us” – presumably Mackinnon herself, and one or more other members of her investigative team.

According to Mackinnon, and quite contrary to Lloyd’s message, Ms X did not tell the investigation that she did not want to participate but only that she needed to consider. For this reason, and others to follow:

“Liz interference v bad.”

I don’t often agree with Judith Mackinnon but she’s bang on the money here. It’s outrageous for the First Minister’s Chief of Staff to be interfering in this way with any ongoing HR investigation, let alone the uniquely significant and sensitive Salmond investigation.

Nor is Mackinnon in any doubt that by seeking overtly to shut down this area of Mackinnon’s inquiry, Lloyd is “promoting a climate that doesn’t encourage people to be supported or speak out”.

This is of course the very opposite of what Lloyd and her boss have always proclaimed and continue to proclaim about their motives and actions throughout the whole Salmond business, a point that Mackinnon does not miss either:

“This contradicts the FMs own public statements about sexual harassment and doesn’t allow Perm sec to fulfil her duty of care.”

For me at least, the subtext of this is also quite clear. Mackinnon assumes, as she has every right to assume, that Lloyd would not be taking this extraordinary course if she did not have her boss’s approval for doing so. Hence, it is not just a matter of Lloyd herself behaving improperly but of the “FM” having her own statements contradicted and the “Perm sec” having her duty of care thwarted by the very person charged with acting on the First Minister’s behalf.

So for readers who keep in mind the broader context of this remarkable saga, and who have read some of the other posts on this blog where I go on at length about the determination of the First Minister, her Chief of Staff and her Permanent Secretary to get Alex Salmond, this attempt by two of the three major players to shut down evidence potentially damaging to Salmond will – and should – require to be explained before we continue.

The broader context

In my view, the war fought against Alex Salmond by Nicola Sturgeon and her powerful clique of insiders has to be seen in distinct chapters to be properly understood.

The first relevant chapter for present purposes covers the period of the Mackinnon investigation from January 2018, when Ms A and Ms B made their formal complaints, to August 2018, when Evans issued her report.

For most of that period, the Sturgeon clique had two equally important and mutually compatible goals: (1) to get Salmond via the complaints of Ms A and Ms B; and (2) to keep Sturgeon herself entirely off the record as playing any part whatsoever in what was being done to Salmond with her full knowledge and wholehearted approval.

(Veteran readers might remember that my very first post on this blog detailed the process by which the whole complaints procedure was “recast” on Sturgeon’s behalf in early December 2017, precisely to remove Sturgeon from the central role she had played in previous drafts of that process and thus to insulate her as completely as possible from responsibility on the record for what was being set up for use against Salmond.)

Throughout most of this first chapter, and certainly during February 2018 when the events detailed in this post were taking place, the last thing Sturgeon or Lloyd wanted was for anything to take place on the record in the Mackinnon investigation that would connect the complaints being made in any way to them. Just as important was to make sure that Alex Salmond never got to hear of any such connection, on or off the record.

I’m very limited in what I can say about this for obvious reasons but self-evidently, the involvement of Ms X on the record in the investigation process presented such a danger.

Self-evidently, it was not, and is not, open to the average Scottish Government employee to approach the First Minister’s Chief of Staff for help as Ms X was able to do, nor to secure the kind of extraordinary intervention on her behalf that Ms X was able to command. It’s a mere statement of the obvious that Ms X was not an average Scottish Government employee.

The second relevant chapter begins in August 2018, when Salmond launched his judicial review and extends at least until Salmond was charged by the police in January 2019, within a couple of weeks of winning his judicial review and humiliating the Scottish Government.

During that period, for reasons which I’ve detailed at length elsewhere, getting Salmond at all costs became the only goal, previous concerns about connections of complainers to Sturgeon herself were all but abandoned, the plan to secure anonymity was hatched, and some of the most powerful people in Scotland became Salmond’s accusers.

Ms X was one of the accusers added during that chapter.

Mackinnon’s response to Allison (continued)

Mackinnon’s response to Allison continues:

“Bottom line is we can’t make her talk to us – but at least we needs reason why she won’t. Not for us to stand her down – she needs to decide she’d rather not and tell us. Think we need her to give us on writing that she doesn’t want to take part.”

And then, as we’ve seen, Mackinnon ends with probably the most eloquent comment she ever made on the whole sorry process:

“Grrr.”

The “bottom line”, as Mackinnon makes clear, is that her investigation is not going to do Lloyd’s bidding and let Ms X off the hook of being responsible for her own decision not to participate.

Further, Mackinnon will not allow Lloyd’s false version of Ms X’s interview on the previous day to stand and will insist on Ms X giving her own reasons in writing for now refusing to co-operate.

Allison’s meeting with Ms X

According to Ms X’s public statement issued in March last year, her meeting with Allison – which, remember was scheduled for 6 February 2018, the same day these messages were exchanged – then took place as follows:

“I then met with the senior civil servant and relayed my extreme apprehension about being involved in the investigation.

“They offered me reassurance that should I decline to cooperate that I would not be impeding the investigation.”

This surely can’t be right. Mackinnon had left Allison in no doubt whatsoever that she disapproved strongly of the behaviour of both Ms X and Liz Lloyd and regarded what they were now seeking to achieve as a contradiction of the First Minister’s own position and even a thwarting of the Permanent Secretary’s duty of care.

The idea that Allison would, that very same day, agree with, and offer “reassurance” about, the very thing that had driven Mackinnon to the point of growling in print, is surely preposterous.

How it ended

There is then a break in the published messages before they resume two days later, on 8 February 2018, with Mackinnon to Allison:

“Still not heard from [Ms X] – so proposing to send her this – As I have not heard further from you in relation to the investigation, I will take that as an indication that you do not wish to engage further with the process. – ok B?”

If there is any truth in Ms X’s version of events above, this would surely then have been the time for Allison to admit to Mackinnon that she had in fact already reassured Ms X that her refusal to cooperate would not impede the investigation and that this was why Mackinnon had not heard further from Ms X.

Allison’s reply was, however, very different: “Can you hold off a bit? Liz is getting me you a number to call her.”

“Will do,” Mackinnon replied.

“Ta. B,” texted Allison. Then, a bit later: “Hi. [redacted] is texting me now with her number apparently. Bx”

And, finally, Mackinnon to Allison: “Standing by. X”

And that’s as much as we know. It’s clear that Lloyd’s extraordinary interference on behalf of Ms X was continuing, and that the conduit for that interference continued to be Allison, who for her part continued to be thoroughly involved in this aspect of the investigation.

But it’s very far from clear why this was happening or what happened next or how the whole matter came to be resolved. Surely, though, this final sentence from Ms X’s statement can’t be all there was to it:

“I conveyed my decision to HR and had no further part in the process.”

And of course this evidence, on oath, from Barbara Allison continues to be as contrary as ever to the facts:

“I had some early contact with the two individuals who ultimately became complainants under the policy for the handling of harassment complaints. Other than that early initial contact, I had no involvement in the investigation.”

What it means

There is much of importance to be drawn from this episode and I hope I’ve made most of it clear in what I’ve written above.

But, at least for me, the overarching meaning of it is the meaning which looms over almost everything I’ve written about the Salmond complaints on this blog.

The episode is just one more piece in the 1,000 piece puzzle that, when fitted together, provides the most compelling evidence that Nicola Sturgeon knew about, wanted, and directed, the campaign to get Alex Salmond, and that she did so from the very start.

I’ve copied the press release below from the Wings Over Scotland website. The selective prosecution of Craig Murray by the Crown Office and Procurator Fiscal Service (COPFS) is another shameful chapter in their history of incompetence and bad faith.

Legal precedent will be set tomorrow as Craig Murray will be the first person to be imprisoned on the charge of jigsaw identification in the UK, and indeed in the entire world. Scotland’s second most senior judge, Lady Dorrian, sentenced Murray to 8 months of incarceration following a contempt of court charge for ‘jigsaw identification’ relating to the trial against Alex Salmond.

In May Lady Dorrian said that in her view Murray had intended to release identities of Salmond’s accusers. Mr Murray has always denied any intent to identify and that anybody was actually identified. Murray had not directly identified any of the accusers in the Salmond trial, but Dorrian argued identification may be possible if his reporting of the case was read in connection with other materials in the public domain.

No one aside from Murray was charged with jigsaw identification in connection with the Salmond case, despite the fact that 81% of respondents in a Panelbase survey who believed that had learned identities, gave mainstream media as the source of their knowledge. Lady Dorrian specifically stated that bloggers and mainstream media should be treated differently, as mainstream media are self-regulated.

Murray is the first person to be imprisoned in the UK for a media contempt for over 50 years, and in Scotland for over 70 years.

Murray’s imprisonment comes after an announcement from the UK Supreme Court that it will not hear his appeal. Former UK Ambassador to Uzbekistan Craig Murray will surrender himself to Police shortly and begin to serve the custodial sentence handed to him. A public protest against Murray’s incarceration is planned. Murray’s wife and mother of their 5 month and 12 year old sons Nadira has written an open letter asking for “active and outspoken solidarity from anyone concerned about the loss of freedom of speech and equality before the law”.

Murray had recently been called as a witness in a case brought by Spanish state prosecutors against UC Global for allegedly acting on behalf of the CIA in covertly spying on Julian Assange in the Ecuadorian Embassy.  Material before the Spanish court includes several hours of covert surveillance video of Murray in private conversation with Assange on the future of Assange and Wikileaks. The Scottish court removed Murray’s passport expressly to prevent him traveling to Spain to testify.

Craig Murray commented:

“I go to jail with a clean conscience after a Kafkaesque trial. I genuinely do not know who I am supposed to have identified or which phrases I published are said to have identified them, in combination with what other information in the public domain. This judgement will have a chilling effect on reporting of the defence case at trials, to the detriment of justice, and the different treatment of bloggers and approved media is sinister.

I carefully protect the identities of the accusers in my reports.

I believe this is actually the state’s long sought revenge for my whistleblowing on security service collusion with torture and my long term collaboration with Wikileaks and other whistleblowers. Unfortunately important free speech issues are collateral damage.”

Murray and the Craig Murray Justice committee have both signalled their intention to continue to resist the penalty handed to him by continuing to appeal to the European Court of Human Rights via all routes required. They are particularly concerned that in her opinion Lady Dorrian implied that bloggers and public commentators like Murray ought to be punished more severely than mainstream journalists for the same offense.

Ellen Joelle Dalzell, coordinator of the Craig Murray Justice campaign group stated:

“The sentence handed to Craig Murray not only sets legal precedent in terms of a custodial sentence for the charge of jigsaw identification, it represents an attack on free speech in general, and a tangible threat to the free reporting of legal trials in particular.

The judgement is excessively punitive, is likely to have severe implications for Murray’s poor health and represents a dangerous precedent for journalists and other writers who seek to fairly report or comment on matters of public law.

Last week my firm sent the following letter to the Lord Advocate, Dorothy Bain, QC:

“We act for Mr Mark Hirst. Please treat this letter as intimation of a claim by him against your staff.

“Mr Hirst was prosecuted for an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 following comments which he made upon the acquittal of former First Minister Mr Alex Salmond. On 07 January 2021 the charges against Mr Hirst were found to be irrelevant, and a no case to answer submission was upheld.

“It is clear that there never was any basis for him being prosecuted, and the prosecution against him lacked reasonable and probable cause both objectively and subjectively. We also maintain that the prosecution was brought maliciously for the following reasons.

“First, it is clear and obvious that there was no reasonable or probable cause. This of itself is instructive in proving malice.

“Second, a warrant was obtained against our client when the primary evidence was plainly available. The warrant application failed to specify the threats that were being made, and was fundamentally misleading to the court. It was disproportionate to obtain a warrant and the application was not framed in a proper manner. It made false allegations about threats being made, which were established to be untrue.

“We are of course aware of the terms of section 170 of the Criminal Procedure (Scotland) Act 1995 which bears to provide immunity from suit for prosecutors when no imprisonment of the accused was imposed. However, having consulted with Senior Counsel, we consider that that provision is incompatible with Article 6 of the European Convention in that it fails to provide a remedy when a wrong is committed.

“Accordingly, our client’s instructions are that we are to place you on notice that we intend challenging the compatibility of section 170 should you fail to admit liability and offer fair compensation.

“Finally, we wish to make clear that this prosecution appears to have been politically motivated. Mr Hirst was, plainly, a supporter of Mr Salmond. We shall of course investigate whether Rape Crisis Scotland were encouraged to make a complaint for political motives, and indeed whether the complainers in the Salmond trial were similarly encouraged to do so.

“We enclose a copy of a writ that we shall be sending to the Chief Constable which is self explanatory. But prior to service, we would reiterate our demand that you admit liability, and confirm that compensation will be paid to our client, failing which we intend altering the writ to include the Lord Advocate as a second defender.

“Please respond to this letter within 21 days.”

I know that many readers of this blog are interested in Mark’s case and I hope it will be a useful service to you — particularly those of you who are prospective victims of the Crown Office and Procurator Fiscal Service (COPFS), and who are contemplating similar action – for me to unpack the contents of this letter a little.

No reasonable or probable cause

Until very recently, it was thought that the Scottish Lord Advocate and COPFS were immune from being sued for malicious prosecution. This was contrary to the position in England, where it was well established that such action was competent.

Partly because of this belief in absolute immunity, and partly because of the extraordinary degree of political protection which they enjoy, COPFS have, for many years now, been a law wholly unto themselves in Scotland, accountable for all practical purposes to no-one.

And so it may have continued had not COPFS made a major miscalculation. They picked for once on victims who had both the resources and the resolve to fight back, namely the liquidators of the former Rangers FC. When the cases against them ended in utter humiliation for the police and Crown, these men sued for malicious prosecution, and a bench of five judges ruled that COPFS, like everyone else in the land, should at last be held accountable for their wrongdoing.

Subsequent decisions in related proceedings have clarified what will be required for such actions to succeed. The first requirement is that COPFS must have proceeded without “reasonable or probable cause”.

There is both a subjective and an objective element to this.

In a very recent case involving one of the Rangers liquidators, the judge said this of the objective element:

“Where, as here, the charges were dismissed as irrelevant, it seems to me that it will normally be difficult to argue that reasonable and probable cause existed from an objective standpoint. A decision that a charge is irrelevant is a decision that even if the Crown were to prove all of the facts narrated in the indictment, the essentials of the criminal charge are not present. As a general rule, it can hardly be said, on an objective assessment, that there is reasonable and probable cause for initiating and continuing proceedings if a conviction cannot result because the circumstances averred do not, as a matter of law, amount to commission of the offence charged.”

As our letter to the Lord Advocate sets out, these were exactly the circumstances of Mark’s case. The sheriff made quite clear in dismissing the case that all of the facts brought before the court by COPFS did not constitute any crime known to the law of Scotland.

Any such crime existed only in the minds of Mark’s powerful accusers, and of their mouthpiece Rape Crisis Scotland, and had no business at all in entering the minds of the police or COPFS.

So much for the objective element.

The subjective element can be boiled down to this:

Did the then Lord Advocate and his COPFS staff have a reasonable basis for belief that they had reasonable and probable cause to proceed against Mark even although, objectively, they didn’t? (And yes, I know it sounds ridiculous, but welcome to the world of the law and lawyers.)

I can think of only one argument the Crown can make here, namely that the then Lord Advocate and his staff at COPFS had an understanding of the criminal law of Scotland so far below the level of the average first year law student that they genuinely believed that Mark’s political comments on a matter of public interest were a crime.

I wish them good luck in making that argument.

So much, then, for the subjective element.

Malice

As our letter suggests, “malice” in this context has a specific legal meaning which bears some relation to its meaning in ordinary usage but is quite far from being the same. In practice, what it means is that some further evidence of bad faith beyond the complete lack of justification for a prosecution should usually be present for “malice” in the legal sense to be established.

In a case like Mark’s, as in the Rangers cases, it’s likely that only a very little more need be shown and, as our letter again indicates, there is in fact a ton more to be had. Here is a paragraph from the writ we’ll be serving on the Chief Constable of Police Scotland, as set out in our letter:

“Further, the bringing of the proceedings by the police amounted to malicious prosecution of the pursuer without that reasonable or probable cause. The police obtained the warrant to search the pursuer’s home on the basis that it appeared that the pursuer had committed an offence. He had not. The police did not produce any information to the Sheriff which would have permitted scrutiny of the application as, had that been done, it would have been obvious that no offence had been committed. It was in any event unnecessary for a warrant to be obtained and it was disproportionate to seek one. As averred above, the police had obtained a copy of the postings in any event. The obtaining of the warrant in such circumstances was oppressive, an abuse of power and unnecessary and indicative of malice.”

In short, we’ll seek to establish that the warrant to search Mark’s home, itself unnecessary in any case, was obtained by the police and COPFS on fictitious grounds. On the basis of that warrant, the police and COPFS, knowing full well what they were doing, seized items which were part of the tools of Mark’s trade as a journalist, thereby depriving him of tools by which he might make his living.

This is far from the only ground on which we’ll seek to demonstrate “malice” – see, for example, my comments below about Rape Crisis Scotland – so suffice it to say that in our submission there will be more than enough COPFS “malice” in what was done to Mark to meet the legal requirement many times over.

Section 170 of the Criminal Procedure (Scotland) Act 1995

The relevant part of this provision is in these terms:

“No judge, clerk of court or prosecutor in the public interest shall be found liable by any court in damages for or in respect of any proceedings taken, act done, or judgment, decree or sentence pronounced in any summary proceedings under this Act, unless … the person suing has suffered imprisonment in consequence thereof …”

This was a rather extraordinary provision even before the Rangers cases, when it was still thought that the Lord Advocate and COPFS had absolute immunity across the board from civil actions for malicious prosecution. In light of the law as it now stands, the provision is, in my opinion, completely untenable and will inevitably be struck down by Article 6.

There is no reason in law or in common sense why COPFS should be liable in damages for maliciously prosecuting someone who goes to jail as a result but not someone who is, rightly, acquitted of the charges against them. Nor is there any reason why people tried before a jury (in “solemn proceedings”) should be treated differently from those tried by a judge alone (in “summary proceedings”).

On the grounds summarised in our letter, this is a provision which must be challenged, and will be challenged, in Mark’s action. It is a challenge which, if successful, will have obvious and far-reaching consequences.

Senior Counsel

I’ll admit that it goes against the grain for me to instruct senior counsel in any case as I take great pride in arguing all of my cases myself. I’ve been delighted, though, to make an exception for Andrew Smith QC, whose services we’re privileged to have secured for Mark’s case.

Along with a couple of other top QCs, Andrew has been, and continues to be, in the forefront of the successful challenge on COPFS immunity that has made possible the action we’re now taking for Mark. He knows this novel and developing area of Scots law with a thoroughness and grasp of detail that is unrivalled at the Bar.

That in itself is a fact that will in no way be lost on our opponents.

I know that Andrew is relishing what lies ahead and in particular is relishing our challenge to section 170, which will be of obvious significance to all of the activists who have been and are being prosecuted on political grounds by COPFS at the behest of the Scottish Government.

Frankly, there’s no-one I’d rather have on board.

Political Motives: Rape Crisis Scotland

The following paragraph is taken from the writ prepared by Andrew and which we’ll be serving on the Chief Constable of Police Scotland in due course, as set out in our letter above.

“On 31 March 2020, STV News posted an article online quoting Sandy Brindley of Rape Crisis Scotland (a Scottish Government funded pressure group) stating that ‘the comments [of the pursuer] are sinister, threatening and to identify the women would be illegal.’ On 02 April 2020, the Daily Record, a tabloid newspaper distributed mostly in central Scotland, alleged that the complainers in the case against Alex Salmond had made a complaint to the police about the pursuer’s post. On 02 April 2020, the pursuer contacted the police to advise that he had heard that the police had received a complaint and he offered to cooperate.”

Remember when reading this that Mark’s accusers – which is to say, Alex Salmond’s accusers – include in their number some of the most powerful people in Scotland.

Remember that Alex Salmond was nonetheless acquitted of all of the charges brought by these powerful accusers by a jury of his peers and on the clearest possible evidence that he was innocent.

And remember what some of the charges brought by these powerful accusers in the High Court of Justiciary – the highest criminal court in the land, where only the most serious crimes are supposed to be prosecuted – actually were:

Touching someone’s leg over her clothing in a car (witnessed by none of the other persons present in the car, including the person’s spouse);

Touching someone’s arms and hips over her clothing and congratulating her that she had lost weight while in a nightclub and in the presence of numerous other people (but again, it seems, witnessed by no-one else present);

Touching someone’s buttock over her clothing during a public photo-shoot (again, witnessed by none of the numerous other people present at the event).

Think of any ordinary person – or Rape Crisis Scotland itself, for that matter – trying to persuade the police even to investigate such allegations, let alone persuading COPFS to prosecute them in the highest court in the land, and you’ll get an idea of just how powerful these accusers are, and just how much of a mouthpiece for them Rape Crisis Scotland, the police and COPFS have become.

Hopefully, you’ll get an idea too of why this is an area which we intend to pursue in detail with the court by way of establishing yet more of the extra elements of bad faith which constitute the clearest possible “malice”.

The Scottish Government’s patronage and control of organisations like Rape Crisis Scotland – and the prominent presence in such organisations of Sturgeon’s personal clique of zealots – goes way wider than Mark’s case, as everyone who has been following their disgraceful attacks on the rights of Scottish women will be all too well aware.

21 days

The period of 21 days for the Lord Advocate to respond to our letter runs out on 12 August 2021.

I’ll let you know what happens next.

I was astonished to discover recently that you support the “reforms” proposed by the Scottish Government to the Gender Recognition Act of 2004.

Surely you see that this is a matter of the most basic ontology and epistemology.

This is what is proposed, as I assume you know:

Grounds on which application to be granted by Registrar General for Scotland

(1) The Registrar General for Scotland must grant an application under section 8A(1) [for a gender recognition certificate] if—

(a) the application includes a statutory declaration by the applicant that the applicant—

(i) is aged at least 16,

(ii) meets the condition in section 8A(2) [that the person is the subject of a Scottish birth register entry or is ordinarily resident in Scotland]

(iii) has lived in the acquired gender throughout the period of three months ending with the day on which the application is made, and

(iv) intends to continue to live in the acquired gender permanently…

You will have noted, I’m sure, that the entire process will now be one of self-certification.

Thus, if a man aged 16 or over with a Scottish birth certificate or living here self-certifies that he is in fact a woman and intends to remain a woman, he cannot be refused a gender recognition certificate. Same thing for a woman who says she is a man.

Nothing else whatsoever is required. Using their gender recognition certificates, the man will become legally female on his birth certificate and the woman will become legally male on hers.

The reference to “gender” is of course a quite deliberate obfuscation. The self-certifying person legally, and quickly, changes sex.

Nor do those proposing these reforms regard this as a legal fiction. They vehemently believe — and demand that the rest of us also believe — that ontological reality has been observed. The man is now a woman and the woman is now a man. The fully intact male-bodied person is female and the fully intact female-bodied person is male.

I have fought the hegemony and its lies all my adult life — as you have for much of yours. In the face of everything ranged against us, all we have is the truth.

All we have is reality — the ontological facts — and the epistemology that is the genetic inheritance of all human beings to know what that reality is.

Being either a man or a woman is one of the most overdetermined realities there is in what Kant called “things for us” as human beings (as opposed to things for frogs or insects or giraffes, which we can never know, or “things in themselves”, which only a handful of particle physicists have even the remotest handle on).

If someone is prepared to surrender that reality for any reason then I’m at a loss to see what reality they won’t surrender. If what every fibre of their being (itself the product of millions of years of evolution) tells them is a man is standing in front of them (and if they know what’s more that the modern science of chromosomes, gametes, bone density, skull shape and size, estrogen and testosterone etc etc etc could also confirm it instantly) and they are prepared to say that this ontological entity is a woman, then there is simply no reality that is secure in their epistemology.

Bluntly, that person has demonstrated that the hegemony can tell them anything and they’ll believe it.

Indeed, their grasp on reality is actually at a level far below that of climate change deniers or believers in the literal truth of the Bible who at least have the excuses of complexity of the facts (climate change) and faith (Bible) for their credulity.

I honestly don’t know what excuse someone who thinks a man can be, or turn into, a woman, or vice versa, has for that denial of ontological reality or, as I say, what there might possibly be that they couldn’t be induced to believe.

I’m utterly baffled to think that this person could be you.

According to the latest bulletin from Scottish Government mouthpiece Rape Crisis Scotland, the First Minister’s Chief of Staff Liz Lloyd intervened in the Salmond complaints process on behalf of a woman who later became “one of the complainers” against Salmond at his criminal trial.

The woman – let’s call her Ms X – has used Rape Crisis Scotland, as has now become the norm for the Salmond complainers, to give her untested – and untestable – claims the widest possible public audience while preserving her court-ordered anonymity. Whether that is a legitimate use of such anonymity remains to be tested.

Ms X’s claims

Ms X’s core claims are these:

“In January 2018 I was approached by Scottish Government HR regarding an investigation they were undertaking into a complaint about Alex Salmond’s behaviour during his time as First Minister.

“I had been named as someone who experienced such behaviour in statements obtained during the course of HR’s investigation.

“After discussion with HR, I decided I did not in any way wish to share with them my own personal experiences, however I also did not want to obstruct an investigation.

“I did not know if I was obliged to cooperate after being asked to.

“I decided to raise the matter with a trusted senior person in government, Liz Lloyd, to gain advice and an understanding of my obligations.

“I was extremely conscious of the sensitivity of the investigation and I, therefore, did not tell Liz who the complaint was from, who it was about or the nature of the complaint.

“I informed her I had been approached by HR in relation to a current investigation. I said I had been asked if I wanted to make a complaint and made it clear to her I did not want to, but I was concerned that if I didn’t I may be impeding an investigation.

“She offered to convey my concerns and what I wanted to happen to an appropriate senior civil servant, who was the most appropriate person to discuss the issue with. I agreed to this course of action. This was not ‘interfering’ but acting in line with my wishes.”

We know in addition that Lloyd’s intervention was made in late January or early February 2018 because Ms X’s claims have been made in response to the disclosure by David Davis in the UK Parliament of an email of 6 February 2018 from Judith Mackinnon in which Mackinnon refers to “Liz interference” and calls it “v bad”.

Suspending disbelief (again)

Let me say at the outset that I don’t believe the claim that Lloyd was not informed that this request from Ms X involved the Salmond complaints. It would be quite bizarre for the First Minister’s Chief of Staff to involve herself in any HR matter without insisting on being informed – and informed fully – of all of the relevant details.

A few seconds’ thought will persuade any rational person that this would have to be the case. Apart from anything else, how could the First Minister’s most senior special advisor even have the relevant conversation with one of the Scottish Government’s most senior civil servants unless both of them knew, at least broadly, what they were talking about?

Presumably, we’re being asked to believe that this was yet another of those John Le Carre conversations that seem to occur daily in the senior echelons of the Scottish Government:

“They said it would rain tomorrow, Judith.”

“You can’t trust the weatherman, Liz, not in the summer.”

“Ah great, thanks, Judith. All sorted now.”

It’s ridiculous of course, but suppose we choose to believe it. Suppose the First Minister’s Chief of Staff really did intervene, quite unknowingly, in an ongoing process being run by the Permanent Secretary under the Scottish Government’s newly adopted procedure for handling harassment complaints against former Ministers.

What follows then?

Nicola Sturgeon’s view of intervention in complaints against former Ministers

The views of Lloyd’s boss, the First Minister, on interventions in the complaints process against former Ministers are well known by now, but, for the sake of completeness, let’s refresh our memories.

This is what Sturgeon told the Scottish Parliament on 8 January 2019:

“I make it very clear that I was not involved in the procedure in any way. I did not intervene in the procedure, I did not seek to intervene and I did not try to influence the course of the investigation. Had I done so, that would have been the subject of absolutely legitimate criticism” (my emphasis).

This is what Sturgeon told the Fabiani inquiry on 3 March 2021:

“Sections 4.22 and 4.23 of the Scottish Ministerial Code seek to guard against undisclosed outside influence on decisions that ministers are involved in, and are likely to have an influence on….

“The situation was, as I saw it, the opposite of that. The terms of the procedure excluded me from any investigation into a former minister. I had no role in the process and should not even have known that an investigation was under way.

“In my judgement, the undue influence that section 4 is designed to avoid would have been more likely to arise had those who were conducting the investigation been informed that I knew about it. I did not want to take the risk that they might be influenced—even subconsciously—by any assumption of how I might want the matter to be handled: their ability to do the job independently would be best protected by my saying nothing” (my emphasis).

A significant intervention in the investigation by the First Minister’s Chief of Staff, however unknowingly, must qualify by any reasonable measure as risking an assumption of how the First Minister wanted the matter handled.

Liz Lloyd’s view of intervention in complaints against former Ministers

It is axiomatic that Liz Lloyd, as chief special advisor to the First Minister, would hold the same view on this matter as her boss, and would be just as anxious as her boss to avoid intervention in such matters for exactly the same reasons. If Sturgeon’s reasoning is sound, then of course any such intervention by her Chief of Staff must be subject to the same “absolutely legitimate criticism”.

But as it happens, we don’t even have to rely on that assumption because Liz Lloyd herself, on 24 November 2017, at a meeting with Cabinet Secretary James Hynd, began the process of advancing exactly these views.

(And at the risk of eliciting more groans from loyal readers waiting for the next instalment of A Very Scottish Coup, I can’t resist a quick preview here. According to a Scottish Government response to a recent FOI request, there was another participant in this meeting who will be of interest to readers of this blog. Sturgeon’s Principal Private Secretary John Somers was at the meeting too – you know, the one who gave sworn evidence at the inquiry that he had no involvement at all in the development of the complaints procedure for current and former Ministers.)

In his evidence to the Fabiani inquiry, Hynd said this:

“During the exchanges that I had with the chief of staff, particularly at a meeting on 24 November, she indicated that the procedure should be developed further to remove from the First Minister the role to decide how to investigate complaints….

“… In the engagements that I had with the chief of staff, she was reflecting what she felt was the First Minister’s view that the First Minister should have less and less involvement in the operation of the procedure at an operational level.”

It could hardly be more obvious, then, that Liz Lloyd was no passive receiver of the First Minister’s line on this. She was, from 24 November 2017 at latest, an active participant in getting this view of the First Minister put as quickly as possible into effect.

As longstanding readers of this blog know, this was achieved in spectacular fashion with the radically “recast” procedure sent out at nearly midnight on 5 December 2017, after a day of frenzied activity and extensive “consultation” with the Salmond complainers.

So when Lloyd was asked by Ms X to intervene in an HR complaints process that was clearly important enough to require such extreme secrecy as to its subject matter and participants, her own very recent crusade to avoid interference in such a procedure at all costs can hardly have faded already from her mind.

An urgent question

When faced with the wholly context-free request from Ms X, then, surely the first thing Lloyd should have done was satisfy herself that its subject matter was at least not one which had anything to do with former Ministers.

After all, as detailed above and exhaustively elsewhere in this blog, both she and her boss had just moved heaven and earth to make sure they had no involvement whatsoever in any such processes.

So why didn’t she?

Maybe someone at the Fabiani inquiry could ask.

Maybe urgently.

Documents just released by the Scottish Government strongly suggest that the First Minister’s Principal Private Secretary John Somers attended a crucial meeting on 13 November 2018 where advice was sought from senior counsel on the crisis that had arisen in the defence of Alex Salmond’s judicial review action.

Somers has previously denied on solemn affirmation at the Fabiani inquiry that he had any such involvement in the judicial review.

If Somers was indeed at the meeting with counsel on 13 November 2018, it seems clear that he has lied to the inquiry.

It is inconceivable that he could have forgotten participating in such a meeting.

Somers’s evidence

On 1 December 2020, Somers told the Fabiani inquiry of his sole involvement in the judicial review procedure:

“On the JR, and specifically the commission, I was asked on 21 December 2018 to search for any documents, emails, text messages or notes, using a number of suggested search terms. Neither I nor the private office held any documents that fell within the suggested parameters.”

He was unequivocal about having had no other involvement:

“Other than carrying out and overseeing the requested searches of the First Minister’s private office, as part of the commission and diligence, I had no involvement in the judicial review.”

The newly disclosed documents

On 13 November 2018, at 13.55, a Scottish Government official whose name has been redacted emailed senior counsel Roddy Dunlop QC to confirm that day’s emergency consultation with the First Minister and Permanent Secretary.

The official confirmed that the meeting was set for 4.45, and continued:

“The Perm Sec is intending to come along. Liz Lloyd will be there, as will [redacted]. John Somers, FM Private Office will be there.”

The email was copied to other redacted recipients who may or may not include John Somers. If he was copied in, then he would have had access not only to the email exchange but to the copious documentation that was to be discussed at the consultation, and which was attached to the email chain, including the views of Nicola Richards, Judith Mackinnon and the First Minister’s Chief of Staff Liz Lloyd on various matters.

In that case, even if, for some unforeseen reason, he did not attend the meeting, he would still have had “involvement” in the judicial review in any meaningful sense of the word.

Indeed, it’s hard to see how he could have been due to attend such a meeting without having had some “involvement” up to that point. If he didn’t, why was he due to attend at all?

The Scottish Government’s evidence

If Somers was at the meeting, contrary to his own evidence on solemn affirmation at the inquiry, his attendance is also contrary to the Scottish Government’s stated position.

On 13 September 2019, they published their response to the following question submitted under the Freedom of Information (FOI) provisions:

“Further to the FOI answer of 29 May, please list attendance of Scottish Government officials and Ministers and Special Advisers at each of the 17 meetings and conference calls with counsel defending the judicial review between 23 August and 3 January 2019.”

For the meeting on 13 November 2018, their answer was as follows:

“13 November 2018: First Minister, Elizabeth Lloyd, Permanent Secretary.”

No mention of John Somers.

The First Minister’s evidence

Nicola Sturgeon also gave evidence about the meeting to the inquiry on 3 March this year:

Murdo Fraser: We know that you attended a meeting with counsel on 13 November. Who was at that meeting and what was discussed?

The First Minister: Clearly, I was at the meeting, as were senior and junior counsel, the permanent secretary and Liz Lloyd—my chief of staff. I think that SGLD was represented, as well.
I requested the meeting; it was part of what I thought was the proper thing to do.

No mention of John Somers.

Why are there no notes or minutes of this and other meetings?

Those of you who are, like me, of a cynical turn of mind, will no doubt wonder if the extraordinary lack of minutes or notes of this and other meetings is somehow related to these kind of matters.

This is how Deputy First Minister John Swinney explained things in his letter to the inquiry of 8 March 2021:

“My letter of 5 March confirmed that the Scottish Government does not hold formal minutes of meetings with Counsel during the Judicial Review and, in response to the clerks’ follow-up question, we have not identified any record of minutes having been prepared or previously held by the Scottish Government.

“I asked officials to check what documents are available, prioritising the meetings on 2 and 13 November 2018, which the Committee has highlighted. Officials have identified a small number of contemporaneous email exchanges referencing these meetings. This includes exchanges following the meeting on 2 November and emails ahead of the meeting on 13 November 2018, attended by the First Minister and Permanent Secretary.

“These exchanges make clear that the focus of the meetings was on discussing and agreeing with external Counsel adjustments to the pleadings for the judicial review. I have asked officials to urgently … publish these email exchanges as soon as possible this week.”

Well, now we have them, John.

And as usual they give rise to many more questions than answers.

A Very Scottish Coup

All of these questions arise of course from my trying to keep up with the shocking revelations now coming out on a daily basis about this Very Scottish Coup, and which keep delaying the completion of Parts Three and Four.

The Government’s now published legal advice, which I’m continuing to review in detail for this purpose, is shocking almost beyond words. In particular, I keep thinking of Judith Mackinnon’s evidence that she can’t really see what she did wrong, and Nicola Sturgeon’s evidence that she just didn’t know anything about anything.

It truly is tempting just to abandon the whole enterprise of rational analysis when we’re this far through the looking glass.

Anyway, for those of you still hanging in there, my usual apologies for the continued delay.

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.

GD 12/03/21

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:

“Dear Judith,

“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].

“Many Thanks

[Ms B]”

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.

My apologies to all of my readers who are eagerly awaiting Parts Three and Four of A Very Scottish Coup, and especially to all of my readers who are journalists with the Murdoch and Newsquest titles, but I just had to take this short break to let you all know that the events I have been describing in this blog since early September 2020 are now officially news.

Yesterday the Scottish Sun, in a long story headlined “Nicola Sturgeon faces ‘serious questions’…” and today The Herald in a story headlined “… Nicola Sturgeon told ‘buck stops with her’…” (faithfully attributing the story to the Scottish Sun as of course it wouldn’t do to plagiarise without attribution) have lifted wholesale the stories I was pleased to bring to you here and here and here and in various other posts on this blog.

As everyone knows, when such things are written in a blog and ignored by the mainstream media, they are not news. They are irrelevant at best, and at worst – the usual case, actually – they are conspiracy theories, deranged “Trumpian” ramblings or, in a recent SNP formulation, vile “alt-right” dogma.

This is the case, as we all again know, even if they are written by someone like Stuart Campbell, whose prodigious output over many years shows him to be well left of centre on every important issue, or for that matter by myself, an activist in the Labour Party Young Socialists when I was barely out of my teens, a Labour Councillor in my twenties, a campaigner against the poll tax and bedroom tax, veteran of a thousand marches and rallies against illegal wars, nuclear weapons, racism, sexism, homophobia, etc, etc, etc, and still now at the age of 58 as committed a libertarian socialist as I’ve been all my adult life.

And of course this is why Nicola Sturgeon and her Government have recently given £3 million of public money to the mainstream unionist media which despises her, and despises the SNP, while simultaneously seeking to make it an offence worthy of expulsion from the Party to read or share pro-independence bloggers of proven commitment like Stuart Campbell.

Because, although in our provision always of evidence, of sources for all claims made, and of rational analysis and argument, it might appear to the uninitiated that bloggers like Stuart and myself are producing news, it only becomes that precious commodity when given that vital seal of approval by the likes of Murdoch and his corporate colleagues.

So thank you Nicola, and thank you Rupert, and thank you whoever gives the journalists their orders at Newsquest for turning the stories on my humble wee blog at last into actual news.

I hope this will serve as an inspiration to all of you other bloggers out there. If you work hard, and be all you can be and dare to dream and never quit – oh, and if it happens to serve their interests for some reason at any particular time – you too might one day find your work anointed by the mainstream media as real live news.

In Part One, I asked what would happen if we suspended disbelief, and all of our critical faculties, and took Nicola Sturgeon and her civil servants at their word on the handling of complaints against Alex Salmond.

Specifically, I asked what would happen if we believed Sturgeon, Evans and the rest that the First Minister knew nothing of the allegations against Salmond from the time they were made in November 2017 until 2 April or 29 March 2018 (depending on which version of the First Minister’s story she is presently sticking to).

Thus began the story of how unelected civil servants staged the most breathtaking coup against the First Minister and the Scottish Government – and of how the First Minister and her Government unaccountably stood back and let it happen.

That story continues now in Part Two. It turns out, however, that simply doing justice to the early Scottish Government handling of complainer Ms B’s allegations, even before they converged with those of complainer Ms A on 20 November 2017, let alone explicating properly the significance to the coup of Ms A’s own story up to that point, and then all that followed from there, will take a good deal more time and space than I had anticipated.

So instead of three parts of A Very Scottish Coup as I’d planned, there will now be at least four. I hope you’ll agree that what follows in Part Two is worth the demands asked of your time and patience, and that by the end of Part Two you’ll still want to see how it all turns out in Parts Three and Four.

The allegations of Ms A and Ms B against Alex Salmond

In January 2018 two formal complaints of sexual harassment against Alex Salmond were made under the new Scottish Government procedure which had been designed exclusively, and which has only ever been used, for that purpose. The first formal complainer, designated Ms A, lodged her complaint on 16 January 2018, while the second formal complainer, Ms B, lodged hers a week later, on 23 January 2018.

But although Ms A had been the first to get in touch with Permanent Secretary Leslie Evans, just a day after the review of the then current complaints procedures was announced to staff on 2 November 2017, and although she was the first to lodge her formal complaint in January of the following year, it was actually Ms B who was the first of the two to raise specific allegations against Salmond.

She did this on 8 November 2017.

It makes sense, then, to look first at Ms B’s allegations, and at how unelected senior civil servants used them to further their remarkable coup behind the backs of the First Minister and her Government.

The “concerns” of Ms B

According to senior civil servant Barbara Allison in her evidence to the Fabiani inquiry, she was walking to work on 8 November 2017 when she received a phone call from Ms B, during which allegations against Alex Salmond were made to her by Ms B. The call was made, according to Allison, in response to an email which had gone out to all Scottish Government staff on 2 November 2017, and which was headed “Sexual harassment – message from the Permanent Secretary”.

It might be noted that the message from Evans to which Ms B was responding contained no mention whatever of former Ministers or historic complaints of any kind. Indeed, the message stated in terms that respondents were being invited “to share concerns about current cultures or behaviours” (my emphasis) and if need be, to access “sources of support” in relation to those current concerns.

Why Ms B contacted Allison to make her historic allegations, rather than her Trade Union representative or line manager, or anyone at the Scottish Government’s bespoke Employee Assistance Programme (EAP), or any of the other “sources of support” set out, with full contact details, in Evans’s staff message is also something of a mystery.

The EAP, for example, according to the staff message, existed specifically to provide “emotional and practical support on a range of issues through trained welfare and counselling practitioners offering confidential, independent and unbiased information and guidance”. Its helpline was free to call, “open 24 hours a day, 365 days a year” and offered “1-2-1 counselling support” with “in-house access to a Counselling and Wellbeing Officer” who could also be contacted directly on the number given.

Further, although she had been at one time Director of HR, Allison no longer had any such responsibilities, being now Director of Communications, Ministerial Support and Facilities.

On the face of it, then, the Director of Communications would seem just about the least apposite person for someone in Ms B’s position to contact about such a sensitive historic matter and, whatever the latter part of Allison’s job title may designate, it’s a fair bet that it isn’t counselling, support or complaints handling.

Of course, as in other aspects of this whole affair, it may be that the MSPs on the Fabiani inquiry have had access to some explanatory information on this matter which has not been released to the public and which would throw some light on the mystery. Certainly, one of its members asked Evans a pointed question on this which suggests he had such information, but Scottish Government stooge Fabiani was predictably on hand to shut down the line of questioning before it could reveal anything significant:

Alex Cole-Hamilton: If I could draw it back specifically to Ms B, who raised a complaint and specifically asked that it be shared only with you.

Leslie Evans: I do not recognise that at all.

Alex Cole-Hamilton: Okay. You do not have a recollection of that, but—

Leslie Evans: I do not have a recollection of Ms B asking for a complaint to be shared with me. I have a recollection of a concern—

The Convener: Can I stop this here? I am becoming concerned again. That was not pulling it back.

Alex Cole-Hamilton: I will move on.

Again, it might be noted that the use here by Evans of the barrack-room lawyer distinction between a “complaint” and a “concern” – a distinction which was not even thought up by Evans and the rest as a back-covering device until much later in the process – is typical of the non-answer “answers” given by all of the civil servants to block productive questioning at the inquiry, and presumably reflects the tens of thousands of pounds of public money spent on “preparing” them for their evidence.

(It might also be noted that even as barrack-room lawyers in their own interests these people are scarily incompetent, having undermined their own precious distinction more or less completely by calling each head of formal complaint against Salmond a “cause of concern” – my emphasis – in their correspondence with Salmond’s lawyers from March 2018 onwards, when they finally deigned to tell him of the complaints.)

Be that as it may, however, the allegations made against Salmond by Ms B on 8 November 2017 were clearly of such import that Allison texted Permanent Secretary Evans that same day to arrange a phone conversation so that she could pass them on.

Then, according to Allison’s evidence at the inquiry, “I spoke to the Permanent Secretary on 9 November. At that point a concern had been raised, but there was no complaint.”

Note again the carefully rehearsed distinction. If a “complaint” can only be a formal complaint made under a published procedure, then of course there can be no “complaint” raised by a phone call, no matter how detailed or serious the allegations made in that call. The point, though, for all those of us who have not had the benefit of thousands of pounds’ worth of witness “preparation”, is that serious allegations against a former First Minister had now been passed to the Scottish Government’s top civil servant and she had to decide what to do about them.

The obvious answer is that she should have forthwith, and that very day if possible, informed the First Minister of these allegations which had emerged, however unexpectedly, from the review of current processes ordered by the First Minister’s own Cabinet “commission”.

She should have forthwith advised the First Minister of the various options for responding to these allegations, including the option which Police Scotland would have advised, and when consulted in December 2017 did actually advise, namely referring Ms B to properly trained and professional support workers and keeping the senior civil servants of the Scottish Government out of it altogether.

This was, remember, no more nor less than her duty under the Civil Service Code:

“You must … provide … advice to ministers on the basis of evidence, and accurately present the options and facts.”

“You must not… deceive or knowingly mislead a minister…”

“You must not … ignore inconvenient facts or relevant considerations when providing advice or making decisions.”

Instead, if Evans’s own evidence and that of all of her senior colleagues is to be believed, she spent the whole of November and most of December 2017 advising Nicola Sturgeon on a procedure being manically developed to action these allegations without ever telling her about the allegations themselves.

How could that be an accurate presentation of relevant evidence, options and facts?

How could it fail to be deceptive and misleading?

How could it not constitute the active concealment of inconvenient facts and relevant considerations?

The initial handling of Ms B

In her evidence to the inquiry, Allison summarised how, after that initial phone call, she then continued to be involved with Ms B and her “concerns”:

“I had early contact with Miss B. That contact was a series of texts. I also had, I think, three telephone calls with her, but no meetings. No record was ever taken of any of her concerns.”

All but one of these contacts were in the period 8 November to 29 November 2017.

Now, given that throughout that time Allison was Director of Communications for the Scottish Government, in addition to whatever responsibilities she had for Ministerial Support and Facilities, and given that a plethora of much more qualified support was already in place for someone in Ms B’s position, with even more about to be added, one might legitimately wonder how this came about.

The answer of course is Leslie Evans.

On 9 November 2017, the day Allison informed her of Ms B’s allegations, Evans met with Director of People, Nicola Richards. The email which Evans’s private secretary then sent out at 20.09 that evening indicates their main topic of discussion, and the actions that were to follow from it. One action was this:

“Perm Sec would like to have calls/conversations tomorrow with… Barbara Allison… Gillian Russell.”

Another was this:

“Nicky – copied for info (and we’ll confirm timings to you asap) and also because you are providing ‘lines’ for Perm Sec for BA and GR conversations and didn’t want to set up before you had a chance to provide.”

Some context may be necessary here for readers new to this blog.

Gillian Russell (GR) was a senior civil servant who had been under consideration for a few days prior to this as a potentially suitable candidate to act as a “confidential sounding board” for staff to go to with “concerns about current cultures or behaviours”. As someone who was outside the HR Department, it was thought that she might be seen as to some degree “independent” of HR processes for staff who were, for whatever reason, mistrustful of HR.

As it happens, one of the strong advocates for such an “independent” role to be created was Ms A, and I’ll come to that in due course. For now, what is relevant is that – however much it might seem like overkill to outsiders like myself – the creation of this role seems to have been a legitimate outcome of feedback from staff at this early stage of the review of current complaints processes and one that had been in contemplation before the allegations against Salmond arose.

The role now being contemplated for Barbara Allison was, however, an entirely different matter.

A new role for Barbara Allison

The next morning, 10 November 2017, Evans duly made her calls as arranged to Russell and Allison, using the “lines” prepared by Richards as the basis for the discussion. The calls were made quite separately to each of them, for reasons which will soon emerge.

The resulting appointments of Russell and Allison, and the roles assigned to each, are evidenced in an email from Richards which followed the separate phone calls and in the two “updates” to that email which were added by Evans’s private secretary in the course of the day.

At 10.28 that morning, Richards emailed Evans and others to run down “what’s needed for today and who’s leading on what”. One of the things needed was for Richards, on behalf of Evans, to provide an “outline for Gillian and Barbara on what is asked of them”.

What was being asked of Gillian Russell was straightforward and in line with what had been previously discussed. As set out later that day in an email written by Richards but sent out from the Permanent Secretary’s own account, her new role was:

“To provide a further choice for staff as a confidante and sounding board (in addition to established mechanisms such as HR / TUs / EAP etc) to help them consider options. If they want to take things forward more formally then you would pass to Judith [Mackinnon, Head of People Advice] and team.”

Its boundaries were also clearly described:

“To keep this manageable the focus is on those who have had experiences of sexual harassment.”

And the line of communication of “issues” through HR to Evans herself was clearly evident too:

“It would be helpful if you could give regular updates to Nicky [Richards]/Judith if issues are raised with you – anonymised if that is the person’s wish. They will then provide me (Perm Sec) … with updates as required.”

So what was Barbara Allison’s new role? What else could possibly be added to this cornucopia of sexual harassment support now being offered by the Scottish Government to their staff?

At 12.40 that day Evans’s private secretary updated the part of Richards’s note which related to what was being asked of Allison with a warning added in blue highlight:

“To bear in mind this outline may become public. There is a phrase Perm Sec thought good for BA role that I’m double checking.”

By 13.11, that double checking was evidently done. Evans’s private secretary added a further note:

“It’s ‘pastoral care’.”

Well, let’s just pause for a moment to digest that. The Permanent Secretary has personally come up with a “phrase” for Allison’s new role, and has done so in case the existence of that new role becomes public. The phrase that the Permanent Secretary has come up with for this wheeze is “pastoral care”.

So what exactly is “pastoral care”? This was Allison’s own description of her role to the Fabiani inquiry:

“The pastoral care role was to be there in case anybody wanted to say, ‘I am concerned that things are coming out; this feels tough, so where can I go for support?’ You would mention trade unions, the welfare officer and the employee assistance programme and so on.”

Huh?

Can it really be the case that Leslie Evans, Scotland’s top civil servant, landed one of her most senior colleagues with a role that was already being fulfilled not only by her newly-appointed “confidential sounding board” but by emails and intranet messages to staff?

Did she really go to all the trouble of dreaming up a job and naming it personally as “pastoral care” just so that one of Scotland’s most senior civil servants could be a human signpost, directing staff to where they could access actual care and actual support?

Well no, of course she didn’t.

Allison’s actual job – not the ludicrous one dreamed up by Evans herself for the express purpose of fobbing off the “public” – was to keep in place the evidently vital connection that had caused Ms B, for reasons we don’t know, to single out Allison in the first place as the person to whom her allegations against Salmond should be made.

Allison’s actual job had nothing to do with “pastoral care” and everything to do with keeping Ms B, and her “concerns” about Salmond, on board while the joyous frenzy to develop a procedure to deal with them began in earnest.

In a rare moment of candour during her evidence at the inquiry on her dealings with Ms B, Allison herself even admitted as much: “I felt that I was trying to hold a space open for her,” she said.

Again, it’s glaringly obvious that this development – a senior civil servant being given a fake job so that a space could be held open for a specific complainer while a procedure was cooked up to action her complaint – was one that the First Minister should have been told about as soon as it happened.

How could the First Minister possibly make informed decisions about that procedure, and assess properly the provisions it should contain, without knowing – as her senior civil servants knew – that a space was being held open so that a specific complainer with a very specific complaint could be the first one to use it?

Let’s leave that for now, though, and complete the story of Allison’s “pastoral care” of Ms B.

The pastoral care of Ms B

On Monday 13 November 2017, a message from Evans was sent out to all staff. It was headed “Sexual harassment at work Permanent Secretary update” and, among other things, it intimated Russell’s new role as a “confidential sounding board”. According to the evidence of the civil servants at the inquiry, it also intimated Allison’s new role of “pastoral care”. A comparison of the two intimations is highly instructive.

The part of the message regarding Russell was perfectly clear. It gave her name and contact details. It described her role of “confidential sounding board for those who have experienced sexual harassment”. It even added for the first time, in an obvious nod to the now frantic efforts being made to develop a procedure to service Ms B’s “concerns”, that the experiences to be confided to Russell could be “current or in the past”.

The part of the message regarding Allison on the other hand…

Well, here’s a test. What follows is a full and complete transcription of the part of Evans’s staff message intimating Allison’s new role.

So imagine you’re a Scottish Government employee in want of “pastoral care”. See if you would be able to divine from this that such care was on offer from Allison. See if you can even find the words “pastoral care”:

“I am aware that some staff have been contacted by the media. It is standard practice to redirect journalists to submit requests through the newsdesk – 0131 244 0222. If you have concerns please contact [REDACTED] or Barbara Allison [REDACTED].”

I promise you that’s the whole thing.

If you don’t think that this would have been sufficient for you as a Scottish Government employee to learn of Allison’s availability for “pastoral care”, you’re not alone.

Gillian Russell didn’t know of it either. Here’s her evidence to the inquiry:

“To be honest, at the time, in November, as the documentation will demonstrate, I was not aware of Barbara Allison having that role of pastoral care. I was aware of the role that the permanent secretary asked me to do.”

In fairness to Allison, though, in addition to her true role of keeping Ms B and her allegations on side while a procedure was drafted to action them, she did also fulfil her fake role of human signpost, at least as far as Ms B was concerned.

On 13 November 2017, Allison forwarded Evans’s staff message containing Russell’s contact details to Ms B, texted her to advise of Russell’s role, and spoke to Russell to advise that someone might be in touch with her, providing no further details.

Russell’s somewhat cool response at that time, as recollected in her evidence to the inquiry, was perhaps hardly surprising, given that Russell, in common with almost all of her Scottish Government colleagues, had no idea of the secret role Allison was performing then for Evans:

“After I took on the role on 13 November, there was an engagement with Barbara Allison, in which she advised me that somebody might want to come and speak to me. I advised Barbara that the text number for that purpose had been made available to staff and that, if anyone wanted to contact me, I would obviously be happy to see what I could do to support them, as had been set out in the note…. She said that she had been approached by somebody who wanted to speak. That was all I knew.”

In fact, Russell never did have any contact with Ms B. Throughout the whole complaints process from “concerns” to formal complaint to ultimate decision, she was handled entirely by Evans through Allison, Richards and Mackinnon.

Indeed, even as late as the time of giving her evidence to the inquiry last year, Russell still wrongly assumed that the “somebody” Allison had been referring to on 13 November 2017 was Ms A. In what is now standard procedure for the inquiry, Allison had to write to them on 9 December 2020 to correct this misunderstanding, and point out that the “somebody” was actually Ms B.

And throughout that whole process, the First Minister was, we are to understand, told nothing.

But again, let’s leave that for now because the handling of Ms B and her “concerns” is about to converge with the handling of Ms A and her “concerns”, and to understand properly how and why that happened, and what it tells us about this very Scottish coup, we need to look now at Ms A.

WHICH IS WHERE I’LL PICK UP IN PART THREE

POSTSCRIPT ADDED ON 7 DECEMBER 2023

I’ve had quite a few enquiries from people asking if Parts Three and Four of AVSC ever materialised, and if so, where they can be read on the blog. I’m afraid that, although I had pretty good drafts of them, I never got around to finished versions and so they do not appear on the blog as I had intended.

This was initially down to my talent for procrastination — with which long-suffering readers of the blog are all too familiar — and then to my firm being instructed by Alex Salmond to prepare for and raise a court action against the Scottish Government. Rest assured that we have made very good use of the material which would have appeared in Parts Three and Four, along with much else, in the Summons lodged in November 2022 at the Court of Session.

For that reason, it wouldn’t be appropriate for me to publish the material now but I fully expect that it will become public, along with much else, as the action proceeds and the evidence is aired in open court. That is one of the main reasons for raising the action and, speaking strictly for myself, the reason why I agreed to act.

POSTSCRIPT ADDED ON 20 FEBRUARY 2021

I made this reply to a commenter below, and I’ve decided also to give it more prominence here:

The misleading statements of the law being put out to the public on behalf of the Salmond complainers by Scottish Government funded agencies like Rape Crisis Scotland concern me deeply.

An accused person is presumed innocent until proven guilty. When an accused person is acquitted — either by not guilty or not proven verdict, both of which are of identical legal effect — the presumption of innocence is maintained. Therefore an accused person who is acquitted is innocent of the crimes of which (s)he has been acquitted as a simple matter of law.

This is not rocket science, nor is it in any way controversial. I would be saying it, as would any person of integrity, if Woman H or Woman A or anyone else championed by Rape Crisis Scotland had been accused and acquitted of a crime by a jury of their peers.

Rape Crisis Scotland and all of the others who are trying to peddle some kind of grey area of guilt in the Salmond case should be deeply, deeply ashamed of themselves. They are doing a very grave disservice to a cornerstone of our justice system.

Let me be clear, as the First Minister herself likes to say.

I don’t think Nicola Sturgeon was being truthful when she made this statement to the Scottish Parliament on 10 January 2019 about the complaints against Alex Salmond:

“I did not know how the Scottish Government was dealing with the complaint, I did not know how the Scottish Government intended to deal with the complaint and I did not make any effort to find out how the Scottish Government was dealing with the complaint or to intervene in how the Scottish Government was dealing with the complaint.”

I think it’s inconceivable that Nicola Sturgeon did not know of the complaints against Alex Salmond as soon as they were made in November 2017.

I think it’s inconceivable that Nicola Sturgeon did not then direct personally the development of the unlawful procedure which was devised by her civil servants specifically to target Alex Salmond.

And I think it’s inconceivable that Nicola Sturgeon was not closely involved in the unlawful handling by her civil servants of the complaints against Alex Salmond from the moment they were made.

I therefore think that Nicola Sturgeon has committed a flagrant breach of this most basic requirement of the Ministerial Code:

“It is of paramount importance that Ministers give accurate and truthful information to the Parliament…. Ministers who knowingly mislead the Parliament will be expected to offer their resignation….”

I think that the First Minister should have resigned a long time ago.

But suppose I’m wrong about all of that.

Suppose Nicola Sturgeon has actually told the truth to the Scottish Parliament, and in the pleadings lodged on behalf of her Government and herself in the Court of Session.

And suppose that every civil servant who has given evidence to the Fabiani inquiry has told the truth too.

Then I think that, if anything, Nicola Sturgeon and her civil servants are in even worse trouble.

Because if they are all telling the truth then there has been, and continues to be, a coup of the most unprecedented proportions against the democratically elected First Minister and democratically elected Government of Scotland by unelected civil servants.

And the First Minister and her Government, who have stood by and let that coup happen, are every bit as much to blame for it as the civil servants who carried it out.

The Civil Service Code

It seems almost pedantic to mention rules at all in the face of such a blatant and self-evident coup against democracy but, perhaps not surprisingly, developing and executing a policy targeted exclusively against a former First Minister behind the backs of the present First Minister and her Government turns out to be in breach of the Civil Service Code.

This is what the Code requires of civil servants under the heading of “Honesty”:

“You must not… deceive or knowingly mislead a minister…”

This is what is required under the heading of “Objectivity”:

“You must … provide … advice to ministers on the basis of evidence, and accurately present the options and facts.”

And just in case that isn’t clear enough:

“You must not … ignore inconvenient facts or relevant considerations when providing advice or making decisions.”

It’s worth at least bearing those rules in mind as we explore the civil servants’ own accounts of what they did behind the First Minister’s back in November and December 2017.

Scottish Government policy on alleged sexual harassment by former Ministers in November 2017

This can be stated simply. In common with every other democratic government in the world, the Scottish Government had no policy on alleged sexual harassment by former Ministers in November 2017.

So if ever there was an area in which civil servants should not have been acting on their own initiative, and behind the backs of their Government, it was this one.

But then perhaps, even if there was no actual policy, there was at least some hint from the First Minister or her Government that could give civil servants, determined for some reason to go it alone, some kind of guidance on how to do so.

Well, let’s look at that.

On 31 October 2017, the Cabinet of the Scottish Government provided its civil servants with a “commission” – a formal instruction – which was recorded in the Cabinet minutes under the heading of “Sexual Harassment” as follows:

“While there was no suggestion that the current arrangements were ineffective, the First Minister had also asked the Permanent Secretary to undertake a review of the Scottish Government’s policies and processes to ensure they were fit for purpose.”

Not much encouragement here, then, for our independent-minded civil servants to strike out on their own.

There was, in terms of the commission itself, “no suggestion that the current arrangements were ineffective”. If then the current effective arrangements did not include procedures for progressing specific allegations against a former First Minister who also happened to be the present First Minister’s mentor and, by her own account, the closest person to her outside of her own family for thirty years, perhaps that was a rather obvious signal that, at the very least, the present First Minister must be advised of these allegations before another step was taken.

In fact, let’s get even more specific.

If the Permanent Secretary Leslie Evans thought on receiving these allegations against Alex Salmond in November 2017 that, alone among all the governments of the world, the Scottish Government needed a new and unprecedented procedure to deal with them, she was obliged by the rules of her job, as well as by plain ordinary common sense, to bring the allegations to the attention of the appropriate Government Minister, namely the First Minister.

If Leslie Evans truly thought that the Scottish Government’s policies and procedures were not fit for purpose unless they could deal with these specific allegations, and that new policies and procedures were therefore needed, it was incumbent upon her to provide all of the evidence in her possession about the allegations to the First Minister, to advise the First Minister on the basis of that evidence, and to accurately present the options and facts.

By the same token, Evans was expressly forbidden from deceiving or knowingly misleading the First Minister and from ignoring inconvenient facts or relevant considerations by withholding this vital evidence of the specific allegations from her.

Our hands-on First Minister and the Ministerial Code

Could there have been, though, some analogous policy or procedure for dealing with similar allegations in another context that Evans could have claimed to be applying in this novel context? And could that have excused what looks for now like the most flagrant of breaches of the Civil Service Code?

Well, let’s look at that too.

The only arguably analogous policy to which Evans could have turned for support in dealing with the Alex Salmond allegations without any mention of them to the First Minister or her Cabinet was the policy for dealing with allegations against current Ministers, namely the policy laid out in the Ministerial Code.

I’ve written and talked about the relevant provisions of the Ministerial Code in previous posts but, with apologies to regular readers, here they are again:

“The First Minister is … the ultimate judge of the standards of behaviour expected of a Minister and of the appropriate consequences of a breach of those standards.”

And:

“It is not … the role of the Permanent Secretary or other officials to enforce the Code.”

That seems pretty clear. Even if we grant for the sake of argument that Evans could rely on an analogy with allegations against current Ministers in seeking to deal with the allegations against Alex Salmond in November 2017, there is precisely nothing in the Code which would have allowed her to do so behind the back of the First Minister.

The Ministerial Code says so in terms. It is for the First Minister to judge the standards of behaviour expected of Ministers. It is for the First Minister to decide whether there has been a breach of such standards. And, where the First Minister decides that there has been such a breach, it is for the First Minister to decide what the consequences for the Minister are to be.

And, as the Code also makes clear in terms, not one of those things is a matter for the Permanent Secretary.

But matters go further still.

The civil servants cliped on their own coup

There was specific communication between senior civil servants on this very topic in November 2017 which puts beyond any doubt that Evans and her colleagues knew full well that all allegations of sexual harassment against Ministers were to go straight to Nicola Sturgeon the very moment they were received.

Remember that the first allegations against Alex Salmond were made in a phone call from complainer Ms B to Director of Communications Barbara Allison on either 7 or 8 November 2017. (The Scottish Government’s Written Statement says 7 November but Allison told the inquiry on oath that it was 8 November.)

Allison then told Evans of the allegations on 9 November 2017.

Just days later, on 13 November 2017, Cabinet Secretary James Hynd said this in an email to senior civil servants about sexual harassment allegations against current Ministers:

“We would need to alert the FM to the fact that a complaint had been received against one of her Ministers and to take her mind about how she wished it to be handled.”

On 15 November 2017, Hynd was even clearer. Here he is, in an email sent to both of Evans’s private secretaries, commenting on a suggestion that complaints against Ministers might be resolved by informal means without the need for Sturgeon to be involved:

“I am not at all sure that this … will be acceptable to the FM either generally or in the specific context of sexual harassment. Especially for the latter I think she will want to know straightaway if a complaint against a Minister has been received and will want to decide how it should be treated.”

There is, then, not the slightest plausible argument that Evans or any of her fellow civil servants could possibly have thought that it was acceptable for them to keep Nicola Sturgeon in the dark about any allegation of sexual harassment against any of her current Ministers.

What possible legitimacy, then, could attach to their extraordinary decision not to tell her about such allegations against her mentor and closest friend of thirty years?

None that I can see.

Nor do matters end even there.

At exactly the time Ms B’s allegations against Alex Salmond were being made to Barbara Allison and passed on to Leslie Evans in November 2017, senior civil servants in the HR Department were coming up with a “route map” for allegations of sexual harassment against former Ministers.

It’s clear that they were simply making this up as they went along since the Cabinet commission of 31 October 2017 had made no mention of the need for any such “route map” and there was no existing policy or procedure for former Ministers on which it could possibly have been based.

Nonetheless, its terms are worth noting:

“If allegation is about a former minister … FM to be alerted …”

And on 15 November 2017, the same date on which he made clear to all of his colleagues the need for Nicola Sturgeon to be advised the moment any allegations were received against a current Minister, Hynd also circulated to all the key players his proposed policy for dealing with sexual harassment complaints against any former Minister.

The draft contained this paragraph:

“The Permanent Secretary will be advised at that point [when a complaint is received] about the nature of the complaint. If the former Minister is a member of the Party of the current Administration the First Minister will be informed and will decide how to address the complaint against the former Minister.”

It’s quite bizarre. Even in terms of their own policy – the one they were now dreaming up from thin air, and entirely behind the backs of the First Minister and the Government they were supposed to be serving – Evans and her fellow civil servants were acknowledging that the first step they should be taking with the Salmond complaints was to tell Nicola Sturgeon about them.

Having acknowledged this obvious requirement on them, they then proceeded to blithely ignore it until June 2018, when the First Minister herself finally told them she had known of the complaints since 2 April.

It’s hard to know whether to be more baffled by their rule-breaking or by their ineptitude.

But perhaps we need to bear in mind that Leslie Evans, over and above any policy of the Government she works for, is an enthusiastic personal devotee of the Stonewall cult and its unhinged policy of “acceptance without exception”, as are other key players such as Nicola Richards and Judith Mackinnon.

So these are people who think that a man can turn into a woman – no, really – just by ticking a preference for female pronouns on a form, and that saying women are “adult human females” is a “dogwhistle” for a “transphobic” hate crime.

Maybe nothing should surprise us about this would-be Scottish junta and their utterly extraordinary coup.

PLEASE COME BACK SOON FOR PART TWO OF A VERY SCOTTISH COUP.

WE’RE ONLY JUST GETTING STARTED.