SALMOND INQUIRY : LIES, LIES, LIES

While the many lies told by the Scottish Government about its treatment of Alex Salmond are now being exposed daily, it’s important to remember that they’re all ultimately in service of one central lie: that Nicola Sturgeon “tried to do the right thing”.

One way in which that lie was exposed by the revelations on Wednesday was the publication of the text in which, on 3 June 2018, Alex Salmond set out for Sturgeon his offer of binding arbitration on the legality of the complaints procedure. As he rightly pointed out, this offer, if accepted, would have conclusively and privately settled that question without the need for the judicial review that eventually followed and without the need for any involvement of the complainers or risk of exposure of their identities.

The offer was rejected out of hand by the unelected civil servant to whom Sturgeon had turned over the whole business, a rejection fully supported by Sturgeon, despite the fact that she is, as Salmond pointed out, herself a lawyer who must surely have been able to see that this was entirely the “right thing” to do for the Government, for the complainers, for Salmond and, as it turns out, for the Scottish taxpayer.

I’ll say more about the detail of this in a future post.

Sturgeon’s “forgetfulness” on when exactly she became aware of the allegations against Salmond is of course the tip of the iceberg of another lie. This has been extensively commented on with varying degrees of insight since Wednesday but again its significance for the central lie remains to be fully exposed.

Sturgeon’s determination to give herself plausible deniability over her Government’s treatment of Salmond from at least November 2017 onwards is at the core of the whole scandal.

I’ll say more about that too in a future post.

Today, I just want to complete the line of thought developed in my last post, on the Scottish Government’s ludicrous claim, maintained to this day, that they conceded the judicial review without ever having done anything wrong.

The reasonable observers

The fault, they say, lies not with them but with this pesky “reasonable observer” who has misconstrued the terms of their procedure and misinterpreted their implementation of that procedure such that the procedure – totally fine in itself – and the actions of their officials – exemplary in their professionalism and impartiality – became somehow biased and unlawful.

This is one lie that can be exposed without the need for any further investigation or evidence.

It can be exposed by the simple means of rational thought.

Let’s think about who a “reasonable observer” might be in the context of a procedure for handling harassment complaints against former Ministers. Clearly, it is not the complainer, because the complainer is a party in the procedure, not an observer of it, and there is no requirement on the complainer to be reasonable, only to make the complaint and have it handled by the procedure. Equally, it is not the former Minister, who is again a party in the procedure with no duty of reasonableness or detachment either.

Now think about who does have the qualities of reasonableness and detachment which the parties in the procedure lack. Those are surely the qualities to be expected – in fact, demanded – of the Government lawyers and senior civil servants who draft, approve and then implement the procedure. Indeed, if I’m not mistaken, these duties of detachment, impartiality and reasonableness are written into their contracts of employment as civil servants and Government employees. They’re contractually obliged to be “reasonable observers”.

Now look at what Leslie Evans and the Scottish Government conceded when they conceded the judicial review. It’s right there in their own Statement for the inquiry:

“[I]t became apparent to the Scottish Government, based on a review of the case which was informed by legal advice, that the combination of two issues could now impact on the case. Firstly, that whilst the meaning of paragraph 10 of the procedure was clear to those involved in its development and operation (i.e. not being involved in the matter being investigated), the paragraph was open to a different interpretation – to mean no prior contact with the complainers in addition to any involvement in the subject matter of the complaint. Secondly, having regard to the totality of the Investigating Officer’s dealings with the complainers before her appointment as Investigating Officer, the reasonable observer would conclude that there was a real possibility that she could not act impartially as she was required to do by the procedure.”

Leave aside the many other grounds on which senior counsel for Salmond apparently advised that the procedure was unlawful, some of which a first year legal trainee could spot. Those too will no doubt be exposed at some point when the inquiry publishes all of the pleadings and notes of argument in the case as it is now free to do.

Consider only this ground of partiality that tainted the whole procedure, and that Evans and the Scottish Government have admitted. Consider the court’s ruling, again in the words of the Scottish Government themselves, that “the Permanent Secretary’s decision report and letter [were] unlawful in respect that they were taken in circumstances which were procedurally unfair and in respect of which they were tainted by apparent bias.”

The responsibility for this unlawfulness of both the procedure and its implementation does not lie with some Johnny-come-lately “reasonable observer” who came on the scene during the judicial review process to find fault with what up until then had been a great job all round.

It lies with the senior civil servants and lawyers – the “reasonable observers” – whose whole job it was to stand back in detached fashion and draft a procedure which, when implemented according to their intentions, would be fair and unbiased.

In their haste to get Alex Salmond, they got that wrong, wrong, wrong, and it’s way past high time they owned up to it.

What the expenses tell us

Wings Over Scotland, in that site’s usual lucid and incisive fashion, picked up on some of these points from this blog in a recent post and had some kind words for it, which are much appreciated. It should hardly need saying that the information and analysis provided day after day, year after year by the Wings site remains by a distance the most important resource that the grassroots Scottish independence movement has.

So let me add this to the excellent analysis in that post of the expenses incurred in the Scottish Government’s unlawful attempt to ruin Alex Salmond.

When they conceded the judicial review, Evans and the Scottish Government also conceded that their whole conduct of the case was such that Salmond was entitled to expenses on the “solicitor and client, client paying” scale. Unfortunately, that dry-as-dust legal terminology obscures what this actually means, and how significant it is.

In the overwhelming majority of cases, court expenses are awarded or conceded on the “party and party” scale, which means that if you win your case, you get the expenses that the other side can reasonably be expected to pay as necessary for your conduct of the action. These are always less than your solicitors and counsel actually charge you – sometimes as little as 60% of your actual costs – and you just have to live with the shortfall.

Only in the most exceptional of cases – I’ve never been involved in one, on either side – does a court award the winning party expenses on the scale which the Scottish Government conceded in the Salmond case.

In McKie v Scottish Ministers [2006] CSOH 54, Lord Hodge reviewed the “well-settled” authority on this, and explained why such an award is so rare. (By way of illustration, this was the case of Shirley McKie, the police officer whose life was ruined when she was falsely accused of leaving fingerprints at a crime scene, whose entirely justified court action was disgracefully opposed and obstructed by her police employers at every turn and who still didn’t get “solicitor and client” scale expenses from Lord Hodge.)

Lord Hodge said this:

“[W]here one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense, the court can impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale. … [I]n its consideration of the reasonableness of a party’s conduct of an action, the court can take into account all relevant circumstances. Those circumstances include the party’s behaviour before the action commenced, the adequacy of a party’s preparation for the action, the strengths or otherwise of a party’s position on the substantive merits of the action, the use of a court action for an improper purpose, and the way in which a party has used court procedure, for example to progress or delay the resolution of the dispute.”

This, then, is what the Scottish Government conceded about its conduct of the Salmond judicial review and, by extension, of the unlawful procedure which gave rise to it.

Incompetent. Unreasonable. Lacking substantive merit. Improper purpose. Delay.

The oft-repeated claim of Sturgeon, Evans and the Scottish Government that they just got unlucky in some late-discovered technicality in the Salmond case is just one more shameful lie.

SALMOND INQUIRY: THE SCOTTISH GOVERNMENT’S CASE MAKES NO SENSE

The Scottish Government have submitted a Statement to the Salmond inquiry in which they seek to explain why they waved the white flag in the judicial review without ever having done anything wrong.

As you might imagine, that’s not an easy task, so we probably shouldn’t be too surprised that the Statement makes no sense at all. Nonetheless, it’s a pretty bizarre document even in the context of the somewhat alternative world of senior civil servants who have titles like “Deputy Director for People Advice” and speak to each other about “granular levels” and “lived experience” and “our learning”.

I can’t think of any better way to demonstrate this than to take you through some key paragraphs of the Statement with my own commentary added, so here goes.

Initial procedure

Three straightforward paragraphs to begin with. I have no quarrel with these:

“9. … On 22 August 2018, following the conclusion of the investigation, the Permanent Secretary notified the former First Minister of her decision. This took the form of a decision report and covering letter…

“10. Also on 23 August 2018, [Salmond’s lawyers] notified the Scottish Government that the former First Minister would raise a petition for judicial review of the decision, and on 31 August 2018 legal proceedings were raised by him.”

“23. On 27 September 2018 the Court issued a timetable order.… A substantive hearing was fixed for 4 days to start on 15 January 2019.”

The commission and diligence procedure

We know from a Freedom of Information request answered on 13 September 2019 that there were at least 12 meetings and/or conference calls between counsel and Scottish Government officials, Ministers and/or Special Advisers in the period up to 19 December 2018 when the commission and diligence procedure to recover evidence in the judicial review began. If there were perceived difficulties in the Government’s case to this point, the Statement gives no indication of them:

“26. As part of the process for the recovery of evidence, a Commission (a formal hearing) was held between 19 and 21 December 2018 before a Commissioner appointed by the court after the Petitioner [Salmond] had lodged a description of further evidence that he wanted to obtain from the Scottish Government (a specification of documents). The specification detailed specific source material that needed to be included in the search such as calendar entries and text messages.”

And then suddenly, without warning so it seems, everything just fell apart for the Scottish Government. Paragraph 26 continues:

“During the Commission it became apparent to the Scottish Government that the decision under review had been taken in circumstances in which an impression of partiality would have been created for a reasonable observer by the totality of the prior contact between the individual who was later appointed as the Scottish Government’s Investigating Officer [Judith Mackinnon] and the two members of staff who made formal complaints.”

Clearly, something dramatic must have happened during this three day procedure. After all, it’s no small matter when a “reasonable observer” would gain the impression that a procedure created and run by a brains trust of senior civil servants and lawyers, and approved by the First Minister herself, was biased and unfair. Indeed, all of the members of that brains trust, including the Investigating Officer herself, would surely have regarded themselves as “reasonable observers” who could stand back and spot apparent bias if it had been there to be reasonably observed prior to the Commission proceedings.

Well, let’s see.

Something dramatic?

“27. The Petitioner [Salmond] and Respondents [Scottish Government] agreed to settle the case on the basis of that acceptance. On 8 January 2019 they lodged a joint minute with the Court setting out the terms on which settlement of the case had been agreed, including that the decision under review was unlawful in that it was taken in circumstances which were ‘procedurally unfair and tainted by apparent bias’. The judge in the Court of Session accepted the joint minute and issued a final order bringing the case formally to an end.”

No, we’re no further forward. Yes, this is more confirmation of how dramatic events in the Commission must have been to bring about such a humiliating surrender but we still don’t know what those dramatic events were.

Maybe this will give us what we’re looking for:

“36. Paragraph 10 of the Procedure under which the complaints [against Salmond] were investigated states that the Investigating Officer ‘will have had no prior involvement with any aspect of the matter being raised.’ This reflects provision typically found in employment policies and refers to personal involvement in the matter being investigated. Reference to ‘prior involvement’ was intended to refer to involvement in the incident under investigation itself or its immediate handling. Later involvement, especially many years later, was not intended to compromise an Investigating Officer’s ability to be an impartial collector of facts unless there is some other factor which debars them. In this case, the Investigating Officer (the Deputy Director for People Advice) [Mackinnon] had had no involvement in any aspect of the events being investigated. She had not been part of the Scottish Government at the time of the events in question, which – along with her experience as an HR professional – had informed her appointment as Investigating Officer.”

Again, as far as the Scottish Government are concerned, neither those involved in drafting and approving paragraph 10 of the Procedure nor the Investigating Officer nor the “Head of People” who appointed her put a foot wrong here. Paragraph 10 is fine and dandy, Judith Mackinnon behaved like the consummate “HR Professional” that she is, and Nicola Richards clearly made a great choice in selecting her for the job.

The mystery of why the “reasonable observer” would see bias in any of this only deepens.

The mystery solved?

The next paragraph at least begins promisingly for our quest:

“37. The Deputy Director for People Advice, had contact, before her appointment as Investigating Officer, with the two members of staff who lodged concerns in advance of their decisions to make formal complaints.”

This surely must be it at last. Somehow in the course of the Commission, Mackinnon and others must have remembered events and documents about which they had completely forgotten up to that point and which they now realised would seem to “reasonable observers” (including themselves) to show bias.

Well, no. Paragraph 37 continues:

“This took the form of ensuring they could have access to support from other sources if required and that the process and choices available were understood by the two members of staff. This was in keeping with the role for the Investigating Officer set out in more detail in earlier drafts of the procedure, and in line with her professional HR role. The individuals also shared reflections about what they thought might prevent harassment occurring in the future.”

This can’t possibly be what caused the towel to be thrown in. Not only was Mackinnon acting “in keeping with the role for the Investigating Officer” but she was “in line with her professional HR role” too. What “reasonable observer” could possibly find fault with that?

On then to the next paragraph:

“38. As noted in paragraph 26 above, previously undisclosed documents were provided as part of the Commission for Evidence held between 19 and 21 December in relation to the prior contact between the individual who was subsequently appointed as the Investigating Officer and the two complainers. These documents indicated the nature of this contact was in line with that described in paragraph 37.”

Again, it could hardly be clearer that these “previously undisclosed documents” weren’t the problem for the Scottish Government. Far from undermining anything asserted in the previous paragraph, these documents were themselves “in line” with it; that is to say, they showed that Mackinnon acted entirely “in keeping” with her role as Investigating Officer and “in line” with her role as an “HR professional”.

On again then:

“39. Nevertheless, it became apparent to the Scottish Government, based on a review of the case which was informed by legal advice, that …, having regard to the totality of the Investigating Officer’s dealings with the complainers before her appointment as Investigating Officer, the reasonable observer would conclude that there was a real possibility that she could not act impartially as she was required to do by the procedure.”

Has any word of the English language ever done more work than that “Nevertheless”?

I have searched for anything in the Statement besides the paragraphs set out above which might add anything at all to the “totality of the Investigating Officer’s dealings with the complainers” as described by the Scottish Government. I invite readers of this blog to do the same.

It just isn’t there.

The “totality of the Investigating Officer’s dealings with the complainers”, according to the Scottish Government, was a totality of exemplary HR professionalism and investigatory rectitude. Nevertheless, it had to be conceded that this surely most unreasonable of “reasonable observers” would, for reasons that remain utterly mysterious, see bias.

And then this:

“40. The Permanent Secretary therefore concluded on 2 January 2019 that the Scottish Government should concede the judicial review proceedings because of the apparent bias issue (described in paragraph 39 above).”

Everyone in here is innocent

I don’t know what else to tell you.

Clearly the Scottish Government have done nothing wrong whatsoever and yet “based on a review of the case which was informed by legal advice” they’ve been prevailed upon to cop a plea and hand over a half million pounds of our money.

The words of Morgan Freeman’s character in Shawshank come to mind.

SALMOND INQUIRY: MORE DIVERSIONARY TACTICS BY COPFS

The Scottish Crown Office and Procurator Fiscal Service (COPFS) appear now to be claiming that material disclosed by them to Alex Salmond’s lawyers cannot be further disclosed by Salmond’s lawyers to the inquiry without a criminal offence being committed.

I know from personal experience that any such claim is false. It is entirely within the discretion of COPFS to authorise Salmond’s lawyers to provide the material to the inquiry or to provide it to the inquiry themselves.

Here’s how I know.

The COPFS material

It is clear that material has been disclosed by COPFS to Alex Salmond’s lawyers which is relevant to the claim of a conspiracy against him and relevant also to the claim that this conspiracy underlies, among other things, the unlawful action taken against Salmond by the Scottish Government.

WhatsApp messages leaked anonymously to Kenny MacAskill MP — sent originally, it seems, by SNP Chief Executive Peter Murrell, and saying that “the more fronts [Salmond] is having to firefight on the better for all complainers” — are said to form part of this material. It has also been reported that messages about Salmond were exchanged among the members of an SNP WhatsApp group which was co-ordinated by a senior SNP official, and that these messages were referred to during a preliminary hearing in Salmond’s criminal trial. These messages too are said to form part of the COPFS material.

There can be little doubt that this material is relevant to the remit of the Salmond inquiry and requires to be disclosed to it before Salmond, Murrell, Sturgeon or anyone else can meaningfully give their evidence and be examined on that evidence.

It remains puzzling that such obvious facts are not self-evident to everyone.

The COPFS claim to secrecy

It is worth setting out what Salmond’s lawyers said about the COPFS material in their letter to the inquiry of 21 September 2020:

“The Crown have reminded us in the strongest terms of the legal restrictions which we have referred to in our correspondence to date. The crown identify that it would constitute a criminal offence for us to release certain material obtained as part of the disclosure in the trial. Both our client and we absolutely have no alternative but to respect that obligation. That is precisely why we have previously suggested that the Committee raise the recovery of that documentation with … Crown Office, whom we do not believe are subject to the same restrictions. They may, of course, take a different view, but it will be for them to explain that to the committee.”

The provisions on which COPFS have evidently relied in their letter to Salmond’s lawyers are sections 162 and 163 of the Criminal Justice and Licensing (Scotland) Act 2010 (the Act) which provide that material disclosed to an accused by COPFS for a criminal trial must not be used or further disclosed for any other purpose, and that to do so is a criminal offence.

Apparently, COPFS are taking the view that there is no way round these provisions. That view is simply wrong, and Salmond’s lawyers are entirely justified in urging the inquiry to pursue disclosure directly with COPFS.

COPFS disclosure in Sheridan v NGN

In late 2015, after years of unremitting slog in the face of the bureaucracy, incompetence, bad faith and utter lack of accountability which defence lawyers know to be the hallmark of COPFS practice generally, and COPFS disclosure in particular, I finally had disclosed to me a good deal of material which was helpful in pursuing Tommy Sheridan’s application to the Scottish Criminal Cases Review Commission.

I was also at that time preparing Tommy’s defence of the appeal by News Group Newspapers Ltd, in which NGN sought a new civil trial for Tommy’s defamation action, which he had won in 2006 and for which he had been awarded record damages.

The disclosure I had prised eventually from the iron grip of COPFS had been given on the usual basis that it was information which would “materially weaken or undermine” the prosecution case or would “materially strengthen” the defence case. Just as Alex Salmond’s lawyers are, I was bound by the terms of sections 162 and 163 of the Act when it came to using that information.

So, knowing that the COPFS material was highly relevant not just to the criminal appeal but to the NGN civil appeal, I wrote to COPFS on 19 November 2015 to ask them for authorisation to use the material in the civil proceedings.

I should say that, as looks likely to be the case with the COPFS material in the Salmond case, this material was dynamite. The documents wrested from COPFS showed, among many other things, that News of the World Editor Andy Coulson and Scottish Editor Bob Bird had conspired with various others to pervert the course of justice in Tommy’s 2006 civil trial by sending their star witness abroad to prevent her being recalled, for fear that she might now tell the truth, and that NGN had hacked Tommy’s phone.

On 16 December 2015, COPFS replied to my request to be allowed to use the material in the civil case and again it is, I think, worth setting out their reply:

“Crown Counsel has now considered your request in detail and has instructed that your client be asked to obtain a court order for the material requested. As civil litigation is ongoing it would be possible for your client to make a motion for specification of documents as part of the commission and diligence process, which motion will not be opposed by the Crown.

“On presentation of this order, the Crown will not re-disclose the material already in your possession however this will permit you to simply re-use the material you already have.”

This letter was put before three judges in the Inner House of the Court of Session at the next hearing of the civil case. Their reaction to the COPFS proposal gave strong encouragement to the belief that the proposal comprised a lot of faffing around to achieve something that for all practical purposes had already been achieved. The material – many hundreds of pages of it – was then simply lodged with the court in eight lever arch files.

No objection was made to this by COPFS, and the court’s eventual judgment in the case, delivered by Lady Paton on 19 August 2016, made clear that the court had no problem with it either:

“The pursuer made an application to the Scottish Criminal Cases Review Commission seeking to have his perjury conviction re-investigated and referred to the High Court of Justiciary with a view to having the conviction quashed. The application was supported by documents concerning the activities of the News of the World.  Many of the documents had been disclosed to the pursuer by the Crown Office after being recovered by police operations. The pursuer lodged many of those documents in the present civil proceedings, in his Appendix A to H.” 

A good few of those many documents concerned NGN’s star witness, and her News of the World story for which Tommy sued, a story nicely summarised by the court as “a totally fabricated account involving, inter alia, bondage, spiked heels, orgies, and whipping.” The provenance of the documents concerning that witness as part of COPFS disclosure could hardly have been clearer, as when Lady Paton narrated how, in Tommy’s arguments,

“[r]eference was made to what appeared to be a witness statement given by [the witness] dated 9 August 2011 taken by DC Cath Murphy … in which [the witness] was noted as stating …

“’Basically the evidence I gave at Tommy Sheridan’s defamation case in 2006 was untrue. I can’t tell you how sorry I am about it, it has completely screwed up my life. I got sucked into it & couldn’t get out of it, it didn’t matter what I said, it didn’t matter to the News of the World that while I was ‘in their care’ I’d tried to commit suicide three times. I felt like I was owned by the News of the World & they’d taken over my life. I’m not proud of what I’ve done, I felt like I had my back against the wall & had to do what they said … I now want to tell the truth …’”

Further, Lady Paton continued, a “persuasive argument” had been presented to the court, “based on material in the defenders’ own records” and such that it was “difficult to see what answer there might be to some of the allegations made”. These included the sending of the star witness to Dubai to prevent her being recalled to give further evidence and material “apparently showing a pattern of phone-tapping, which was said to have allowed the defenders to identify and trace people with whom the pursuer had private contact, with a view to compelling them to give evidence against him”. It was, the judge repeated, “far from clear what answer, if any, there could be” to these allegations.

NGN’s appeal was refused and Tommy kept his damages.

A wee coda

I can’t resist adding that, having endured many years of indignant denials by NGN’s lawyers that their clients were criminals, I finally had the rare and pleasant experience of having Roddy Dunlop QC (who acted for the Scottish Government in the Salmond judicial review, and is now Dean of the Faculty of Advocates, and who was then acting for NGN) interrupt me during a court hearing to make make just that admission.

The interruption came at a subsequent hearing in the Sheridan case before the original trial judge, Lord Turnbull, on 3 November 2017 as I was once again laying out for the court how NGN and its employees had hacked Tommy’s phone and conspired to pervert the course of justice in the civil trial.

“My Lord,” sighed Mr Dunlop, rising from his seat with all the veteran weariness he could muster, “I say this to assist my learned friend and to help this case progress — it can be taken as read that [the star witness] was spirited away and that Mr Sheridan’s phone was the subject of phone hacking. You are free to make of that as you will.”

It was truly a moment to be savoured.

Just another fig-leaf

But back to the Salmond inquiry.

Notwithstanding anything the Act says about the strictly limited use to which COPFS disclosure to an accused can be put, or the criminal consequences that can follow if it is used for other purposes, COPFS clearly believe that they have discretion to allow disclosed material to be used for other purposes by an accused or former accused.

That belief has been sanctioned by the highest court in Scotland in Sheridan v News Group Newspapers Ltd [2016] CSIH 67.

It is therefore false to claim or imply that COPFS are precluded by statute from authorising Alex Salmond’s lawyers to release to the inquiry the material which was disclosed to them for the criminal case. That is precisely what COPFS authorised, and what the court sanctioned, in the Sheridan case.

If there are other reasons why such authorisation should not be given, and why both the inquiry and the public should not be told what was said and done by Peter Murrell and others in these WhatsApp messages, COPFS should state, fully and clearly, what those reasons are.

As things stand, the threatening letter they have sent to Alex Salmond’s lawyers looks like just another fig-leaf in an ongoing cover-up.

SALMOND INQUIRY: WHY DIDN’T THEY ASK EVANS?

Readers of my last two posts will have been disappointed, I’m sure, with both the questions asked and the answers given at the Salmond inquiry yesterday.

It might be worth reminding ourselves of the remit of the inquiry:

“To consider and report on the actions of the First Minister, Scottish Government officials and special advisers in dealing with complaints about Alex Salmond, former First Minister, considered under the Scottish Government’s Handling of harassment complaints involving current or former ministers procedure and actions in relation to the Scottish Ministerial Code.”

I confess I was struggling to identify the relevance to that remit of most of what was asked in the first hour yesterday. I was also shocked at how ill-prepared the witnesses were to answer the few relevant questions that were asked. Is it really too much to ask that such senior and important witnesses, giving evidence on such important matters to a Parliamentary Committee, should brief themselves fully on all of the relevant matters for which they are constitutionally responsible before they turn up?

Leslie Evans at least said she would respond to the inquiry on some of the things she was asked about and didn’t seem to know.

So here are some of the questions that I think should have been asked and to which the inquiry, and the Scottish public, deserve some answers:

Arranging to share the draft procedure with Ms A and others

On 1 December 2017 at 12:10, “Director of People” Nicola Richards wrote in an email to James Hynd, Head of the Cabinet secretariat: “Would you be able to send me the latest version of the process? I agreed with Perm Sec that I would test it with some key individuals.”

Is it true that Evans agreed with Richards, on or prior to 1 December 2017, that the latest version of the process was to be tested on key individuals? If so:

When and how was this agreed?

Was it by text or email and if so, where are those texts or emails?

What did Richards tell Evans about what was involved in the testing?

In particular, did Richards tell Evans that one of the key individuals was Ms A?

Why was Evans apparently unable to remember anything about this specific instance of sharing the draft procedure with a potential complainer when she gave her evidence yesterday?

Sharing the draft procedure with Ms A on 5 December 2017

On 5 December 2017, Richards and “Head of People Advice” Judith Mackinnon met with Ms A, and shared with her the draft procedure as it existed to that date.

In a timeline document, after recording this meeting with Ms A on 5 December, Richards made a further entry for that same day: “NR/Perm Sec 1:1”.

What does that entry mean? If Evans doesn’t know, will she find out from Richards and advise?

Did Evans meet with Richards on 5 December 2017 after Richards and Mackinnon met with Ms A? If so:

Did Richards tell Evans about the meeting that day with Ms A?

Is there written material relating to these events and if so, where is it?

Why was Evans unable to remember anything about this specific instance of sharing the draft procedure with a potential complainer when she gave her evidence yesterday?

The recast of the procedure on 5 December 2017

In all eight previous drafts of the complaints procedure up to 5 December 2017, the First Minister had a central role. She was to be informed as soon as a formal complaint against a former Minister was made. She was to take any steps necessary to ensure the former Minister cooperated with the investigation. She was to be informed when the investigation of the complaint was completed, and any further action on the complaint was hers to consider and take.

In the ninth draft, sent out by Richards at close to midnight on 5 December 2017, all of this was suddenly gone. The First Minister now had no role at all. The Permanent Secretary would now decide whether a complaint against a former Minister was well-founded, and the Permanent Secretary would determine what further action was to be taken on it.

On 6 December 2017, Richards sent this ninth draft to Evans, already calling it the “final version” of the procedure. She was right. This version was essentially what was approved by the First Minister on 20 December 2017, and was the procedure used against Alex Salmond.

Evans was closely involved in the drafting process at the time and has surely reviewed it again closely at least twice – for the judicial review and again for the inquiry – but if the answers to any of the following questions still fall outwith her own personal knowledge, they can be easily garnered from Richards, Mackinnon, Hynd or any of the others who were also involved and for whom she is ultimately responsible.

Why, after 5 December 2017, was the First Minister no longer to be informed of formal complaints against former Ministers?

Why was the First Minister no longer to seek to secure the cooperation of the former Minister with the investigation of complaints?

Why was the First Minister no longer to decide on the merits of complaints and further action to be taken?

Why was that role now taken over entirely by the Permanent Secretary?

Given that every previous draft of the procedure had emphasised the very different roles of the First Minister and Permanent Secretary in the complaints procedure, and the need for both roles to feature in the process to ensure fairness to all concerned, how could a “final version” with a role only for the Permanent Secretary possibly be fair?

Was the “final version” influenced in any way by the sharing of the draft procedure with Ms A by Richards and Mackinnon on 5 December 2017, and if so, how?

It seems to me that practically every one of these questions is more relevant to the inquiry’s remit than most of what was asked yesterday.

But I don’t suppose that any of us are holding our breath exactly for them to be asked or answered in the inquiry.

SALMOND INQUIRY UPDATE

In my last post I described how, on 29 November 2017, senior civil servants Nicola Richards and Judith Mackinnon sought to share the draft procedure they were developing for harassment complaints against former Ministers with “Ms A”, a woman who went on to make a formal complaint of sexual harassment against Alex Salmond in January 2018.

Further documents supplied by Scottish Government officials and published now by the Salmond inquiry show that Ms A did indeed meet with Richards and Mackinnon – on 5 December 2017.

The documents include a timeline updated by Richards on 6 December 2017 and sent to Mackinnon at 22.28 that evening. According to Richards, in her letter last week to the Chair of the inquiry, “This document notes the meeting with Ms A – this took place on 5 December 2017 where the draft procedure was referred to in hard copy.”

The timeline features two entries for 5 December. The first entry says:

“NR/JMack meet Ms A”

The purpose of the meeting between Richards, Mackinnon and Ms A is then recorded as follows: “Sought views on draft policy – whether this would have helped her at the time and how to put in place safeguards for the future.”

The remaining text in the first entry has then been redacted by the Scottish Government.

The second entry for 5 December is somewhat cryptic:

“NR/Perm Sec – 1:1”

One interpretation is that, after meeting with Ms A, Richards had a one-to-one meeting with Permanent Secretary Leslie Evans.

It appears that Richards then worked late into the evening. Just before midnight, at 23.34 that same day, she sent out her “recast” version of the complaints procedure – see the previous post below for full details.

In her email attaching the recast – sent to Judith Mackinnon, James Hynd and “Lawyer 1” – she began, “As discussed today, I’ve made some revisions to the process…”

The timeline also features an entry for 6 December 2017: “Revised policy agreed with legal and submitted to Perm Sec”. In her email to Mackinnon attaching the timeline and the recast procedure, Richards confirmed: “I’ve updated the timeline – and this is the final version of the policy I’ve sent to Perm Sec.”

Evidently, the civil servants were very confident that, within a day of its having been created, the recast procedure would now be the final one.

They were right.

The recast procedure was approved by First Minister Nicola Sturgeon on 20 December 2017 after only the most minor of changes.

On oath

I present this further update without comment.

On 1 December 2017 at 12:10, Nicola Richards, the “Director of People”, emailed James Hynd, Head of the Cabinet secretariat: “Would you be able to send me the latest version of the process? I agreed with Perm Sec that I would test it with some key individuals.”

At 14.43 that same day, Hynd replied, attaching the latest version of the draft procedure as requested. “Here you are,” he wrote.

On 25 August 2020, in his evidence on oath to the Salmond inquiry, James Hynd said this:

“To be clear – if I was not earlier – the first that I heard about any allegations was, I think, on 24 August 2018, when there were press reports. I knew nothing before then about any complainer or anybody raising concerns. I knew nothing about the appointment of any investigating officer or about any sharing of the draft procedure with any individuals.”

WHY WAS THERE NO ROLE FOR STURGEON IN THE SALMOND COMPLAINTS PROCESS?

The Scottish Government’s procedure for complaints against former Ministers was fundamentally “recast” on 5 December 2017 after a senior civil servant agreed to “test” the latest draft of it with “key individuals”. One of those individuals, who later went on to make a formal complaint against Alex Salmond, was told in an email of 29 November 2017 that this would give her an opportunity “to consider next steps”.

Until the change, the First Minister had played a central role in each successive draft of the new procedure. After it, she had no role at all in the process.

Instead, complete control over the complaints procedure was handed at a stroke to the Scottish Government’s Permanent Secretary, Leslie Evans. This unelected civil servant was now to take charge of investigating complaints against former Ministers, and was to be the sole judge of whether they were “well-founded”.

Documents recently made public by the Salmond inquiry reveal this sudden and unexplained change of direction. The exclusion of the First Minister from any role in the procedure was retained when the new policy was approved by Nicola Sturgeon herself on 20 December 2017 and duly came into force.

The repercussions of this power shift of 5 December 2017 could hardly have been more important or wide-reaching for Scottish politics.

When complainers who had been waiting in the wings while the new procedure was being drafted then lodged their formal complaints of sexual harassment against Alex Salmond in January 2018, they were dealt with under the post-power shift procedure.

Had this been the procedure as drafted to 1 December 2017, Sturgeon would have been informed by Evans as soon as the formal complaints against Salmond were received in January 2018. Sturgeon would then have been obliged to participate in the investigation process by taking any steps necessary to secure Salmond’s cooperation with the process. And, crucially, Sturgeon herself would have decided on the merits of the complaints made against Salmond, and whether or not they should be upheld.

Instead, the post-power shift version was applied to the Salmond complaints. Sturgeon was not even informed by Evans when the complaints were received. Indeed, by her own account, she only learned of the complaints because Salmond himself informed her of them on 2 April 2018. Sturgeon was, as she herself told the Parliament, forbidden from seeking to “intervene” in the process even when finally informed of it. And the crucial decision on the merits of the complaints was made, entirely without reference to Sturgeon, by Leslie Evans.

If it was Sturgeon’s own idea to suddenly remove herself from the complaints process, why did she do it? If it was not her idea, why did she go along with it?

Plugging the gap

When Sturgeon and her Cabinet ordered a review of complaints procedures on 31 October 2017, the responsibility for drafting new procedures fell quickly on three senior civil servants: the Head of the Cabinet secretariat, James Hynd; the “Director for People”, Nicola Richards; and the “Head of People Advice”, Judith Mackinnon. They reported at every stage to Evans.

Hynd took the lead in producing eight distinct versions of the procedure in the period to 1 December 2017, and in keeping track of the many revisions put forward in between versions by Richards, Mackinnon, Evans and the small group of civil servants and lawyers who were consulted at various points as the drafting progressed.

Hynd seems to have recognised from the outset the value of making the new complaints policy for former Ministers look as much as possible like a simple extension of existing procedures for current Ministers based on the Ministerial Code. The value was this. Framing the new procedure as the mere plugging of a “gap” in the Code’s existing provisions offered by far the best hope of selling it as legitimate policy development and not as an unprecedented departure from ordinary good sense and legality.

The Ministerial Code of 2016, soon to be amended by Hynd but still in force at this time, said this about the behaviour of current Ministers: “The First Minister is … the ultimate judge of the standard of behaviour expected of a Minister and of the appropriate consequences of breach of these standards.”

Accordingly, in his first four drafts of the new procedure, Hynd was careful to make the First Minister the “ultimate judge” of complaints against former Ministers too. To achieve this, and after setting out proposed procedures for investigating claims and having a report of the investigation prepared, he included the same provision each time: “If the former Minister is a member of the Party of the current Administration, the First Minister will consider the report from the perspective of the actions of the former Minister.”

The sought-after analogy with the First Minister’s ultimate authority under the Ministerial Code, on which the perceived legitimacy of the policy depended, is clear.

Richards, Evans and the other civil servants had different priorities. Apparently with the support of the First Minister and her Chief of Staff Liz Lloyd, their overriding concern was to have operational control over the investigation of complaints delegated from the First Minister to civil servants under the direction of Evans. This concern applied to both current and former Ministers and they sought to support it with constant references to their “duty of care” for civil service staff with complaints.

In Hynd’s first four drafts, this too was accommodated. Control over investigation and the preparation of a report of that investigation was duly delegated to the Permanent Secretary and her civil servants in each draft. And in each draft too was the same provision as to what was to happen alongside consideration of the report by the First Minister: “The Permanent Secretary will consider the report from the perspective of ensuring the welfare and support arrangements of the staff member.”

The division of responsibility reflected the perceived different interests of government on the one hand and the civil service on the other. The Permanent Secretary would look after “the welfare and support arrangements of the staff member.” It was for the First Minister to judge “the actions of the former Minister.”

With his fifth draft, Hynd took the development of both strands of the procedure to a new level. Up until this point each version had been about former Ministers only. Now for the first time he produced a draft setting out the complaints procedures for both current and former Ministers in one document. Current and former Ministers were each allotted their own section of provisions but, crucially, each referred to a common provision for investigation and the preparation of reports which would then apply equally to both categories of Minister.

The attraction of this is obvious. What could make the new procedure look more like the simple plugging of a gap in existing measures than to have current Ministers, already very clearly covered by the Code and under the ultimate authority of the First Minister, regulated now by exactly the same provision as former Ministers?

Again, however, the other main strand of policy objective was also being simultaneously accommodated. The common provision which regulated the investigation of complaints and the reporting of those investigations was essentially the same one as in the first four drafts, which had covered former Ministers only. By this means, the First Minister’s ultimate authority over the investigation of complaints was now delegated to Evans and her civil servants for current Ministers just as it had been from the very first draft for former Ministers.

This fifth version was then sent to the First Minister on 22 November and discussed at a meeting on 24 November. However, the drafting process continued unabated and three more distinct versions were produced, each now dealing with both current and former Ministers and each delegating operational powers to the Permanent Secretary and her civil servants while preserving the First Minister’s ultimate authority to decide complaints against both current and former Ministers.

Version 6.2, the eighth distinct version produced in the drafting process, was sent by Hynd to Richards on 1 December 2017. As in every previous draft, investigation and reporting were delegated to the Permanent Secretary but the decision on the complaint, and any action affecting the former Minister, was for the First Minister alone: “For complaints involving a former Minister who is a member of the Party of the current Administration, the Permanent Secretary will inform the First Minister of the outcome of the investigation…. It will be the responsibility of the First Minister to consider any further action.”

The gap unplugged

On 5 December 2017, a mere four days after Hynd’s eighth version was sent to her, Richards for the first time circulated a version of her own, one that changed the game completely. The new version put paid once and for all to any notion that the policy for former Ministers could be seen as analogous to the policy for current Ministers.

The “plugging the gap” argument, always a stretch, was dead.

In the new version, there was no longer any common provision for current and former Ministers. Each was dealt with in entirely separate sections. All previous attempts to make the respective procedures look like two sides of the same coin were abandoned.

For harassment complaints against current Ministers, the First Minister remained, as she always had been, the “ultimate judge of their conduct”, both of whether a complaint was to be upheld and of what the consequences would be if it was.

But for harassment complaints against former Ministers, she now had no role at all: “The Permanent Secretary will … decide whether the complaint is well-founded.”

And then: “The Permanent Secretary will also determine whether any further action is required…”

So much for any continuity with the Ministerial Code. So much for the First Minister as “ultimate judge”. And so much for both the Permanent Secretary and First Minister being needed in the process to look after the separate interests of civil service and government, not to mention the interests of the accused former Minister. Now, only the interests of the civil service were to be represented in the process.

Heroically, James Hynd still tried to present this state of affairs as the mere plugging of a gap in the Ministerial Code and other procedures when he appeared before the Salmond inquiry last week. “I identified the gap in respect of former Ministers,” he told the Committee, “and it was subsequently agreed by the Permanent Secretary and the First Minister that that needed to be filled.” It was, he said “right to fill the gap, but perhaps it had not been addressed in times gone by because of the difficulties and complexities in drafting such a procedure.”

Tactfully, Hynd did not mention that the basis of the eight versions of the procedure in which he had grappled with those difficulties and complexities had been discarded at a stroke in the ninth version drafted by Richards, essentially the version approved by the First Minister on 20 December 2017 and still in force today.

At the time, however, he appeared to at least recognise that there might be a problem. “Thanks for this,” he wrote to Richards on 6 December 2017 to acknowledge her new version. “I have confined myself to thinking about the Ministerial Code aspects. HR colleagues and [Redacted – Lawyer 1] are far better placed than me to offer advice on whether the recast process satisfies best HR practice and our legal obligations.”

The word “recast” screams off the page as does the subtext of the email. Hynd had done his best. Richards, Evans and the lawyers were running the show now.

From “ultimate judge” to “no role”

It is hard to overstate just how much the Richards version of 5 December 2017 was indeed a “recast” and not any mere revision of the draft procedure as it had existed to that point.

In “v.6.2” , Hynd’s last draft before the recast, as soon as a complaint of harassment was received concerning a former Minister of her own Party: “the First Minister will … be informed.”

After the recast, that provision simply disappeared.

Before the recast: “The First Minister will take any steps necessary to ensure that the former Minister cooperates with the investigation.”

After the recast, that provision too disappeared.

Before the recast: “the Permanent Secretary will inform the First Minister of the outcome of the investigation…. It will be the responsibility of the First Minister to consider any further action…”

And after the recast: “The Permanent Secretary will… decide whether the complaint is well-founded….The Permanent Secretary will also determine whether any further action is required…”

The key individuals

Why did this happen?

One possible explanation may lie in an email sent by Richards to Hynd on 1 December 2017, in response to which he sent her v.6.2.

“Would you be able to send me the latest version of the process,” Richards wrote. “I agreed with Perm Sec that I would test it with some key individuals.”

Four days later, the recast version made its first appearance.

Of course, correlation does not imply causation, and these may be two entirely unrelated events. Nonetheless, obvious questions arise.

Who were these key individuals? What was involved in “testing” the process with them? Did Richards proceed with the test? If so, what was the outcome of the testing? Did the process change as a result of the testing, and if so, how? Is the drastically recast process of 5 December 2017 the result of the test with key individuals which was proposed four days earlier?

One further document just published by the Committee may give some further clues as to what the answers to these questions might be.

On 29 November 2017, two days before Richards sent her “test” email to Hynd, a civil servant who had been appointed as a “sounding board ” for potential complaints had an email exchange with “Ms A”, an individual who subsequently made a formal complaint of harassment against Salmond.

The “sounding board” wrote: “As agreed I sent your narrative on in confidence to Nicky [Richards] and Judith [Mackinnon]. I have now been asked by Nicky and Judith if you would be prepared to speak to them following receipt of your narrative.”

The email continues: “As part of this discussion Nicky would like to share with you the developing policy for handling complaints against former and current ministers. This would give you an opportunity to test whether this would have helped at the time and also to consider next steps.”

Later that day, Ms A replied: “I’d be happy to speak to Nicky and Judith, and will text Nicky as suggested.”

The use of that word “test” is surely significant. Was Ms A one of the key individuals on whom the draft procedure was to be tested? Did she take part in a test? And was it in any way as a result of that testing that the draft procedure came to be so radically altered just six days later?

The First Minister

On 24 August 2018, Leslie Evans issued a statement in which she confirmed that the new procedure approved by Nicola Sturgeon on 20 December 2017 had been used to process two formal complaints against Alex Salmond. That procedure was, in all essential respects, the Richards recast of 5 December 2017.

Evans stated that she had advised Salmond two days previously of “my conclusions” and that “I was considering the public interest in making the fact of the complaints and investigation publically known.” She continued, “I am now able to confirm the fact of the complaints”.

The First Minister, she said, “has had no role in this process. I advised her of the conclusions of my investigation on Wednesday and she is of course aware that I am making this statement today.”

Salmond raised judicial review proceedings over the procedure used against him and the Scottish Government was subjected to a humiliating defeat. Again, Nicola Sturgeon, it would appear, played no role in that matter either.

Just as Leslie Evans, an unelected civil servant, had made all the decisions about the Salmond complaints so, it would appear, she made all the decisions about the judicial review too. It is a “well established principle,” the First Minister told the Parliament in her Statement of 8 January 2019, speaking of the Salmond complaints process and the Scottish Government’s concession of apparent bias, “that such a process must not just be impartial in fact, but must also be seen to be so. It was on that basis that the Permanent Secretary decided to settle the case…”

This is not the only part of Sturgeon’s Statement that seems other-worldly. There is a firm conviction of self-righteousness in all that she says, as if the Richards recast was something that came down from the mountain on tablets of stone, and that she had no choice but to accept.

Yes, she happily agrees with Jackson Carlaw, she didn’t know what was going on in her own Government but that was right and proper because she was forbidden from knowing by the procedure.

Yes, “of course” the Permanent Secretary did not inform her of the complaints against Salmond, because that would have been contrary to the procedure.

Yes, she was finally informed of the complaints by Salmond himself on 2 April 2018 but the “important principle” on which she was “absolutely satisfied” was that she did not “seek to intervene” because that was forbidden by the procedure.

And so on.

It is hard to know if she even remembers that as recently as 24 November 2017, when there is no doubt she saw and discussed at length Hynd’s fifth draft of the procedure, it was just as obvious that she would be informed of such complaints as soon as they were received, that she would have had a positive duty to “intervene” in the process in order to ensure Salmond’s cooperation, or even that she herself and not an unelected civil servant would have been the one to make the all-important decisions on the complaints.

But as is vividly demonstrated by the history of the drafting process set out in the documents now made public, the procedure used against Salmond did not come down from the mountain. It was recast dramatically on 5 December 2017 by mere human beings.

So again the questions arise:

If it was Sturgeon’s own idea to suddenly remove herself from the complaints process for former Ministers, why did she do it?

If it was not her idea, why did she go along with it?

%d bloggers like this: