Procedure for Handling Complaints Involving Current or Former Ministers (Judicial Review Conclusion)

– in the Scottish Parliament at on 8 January 2019.

Alert me about debates like this

Photo of Christine Grahame Christine Grahame Scottish National Party

I move straight on to the next item of business, which is a statement by the First Minister on the conclusion of a judicial review. The First Minister will take questions at the end of her statement, so there should be no interventions or interruptions.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

On 16 and 24 January 2018, the Scottish Government received two formal complaints of alleged misconduct by Alex Salmond during his time as First Minister. Those complaints came from two separate individuals.

The complaints were investigated under the procedure for handling complaints involving current or former ministers, which I will refer to from here on as “the procedure”. As members are aware, that procedure was signed off by me and came into force in December 2017. As part of that procedure, I formally delegated responsibility for investigating complaints of such a nature to the permanent secretary.

The new procedure formed part of a wider review of Scottish Government policies and processes for addressing inappropriate conduct that the permanent secretary was asked, by the Cabinet, to undertake in the wake of the me too allegations. That review was confirmed to Parliament by John Swinney on 31 October 2017.

In August 2018, following the conclusion of the investigation into the complaint that had been raised about his conduct, Alex Salmond sought a judicial review of the procedure and the way in which it had been applied to him. This morning, the Court of Session accepted a joint minute from the Scottish Government and Alex Salmond settling the action for judicial review. The permanent secretary issued a statement earlier today, detailing the reason for the decision to settle the case.

It is also appropriate for matters to be set out—at least in summary—to Parliament. Therefore, I will, as far as I am able in the light of the terms of the settlement and, perhaps more important, of the on-going police investigation, seek to provide Parliament in this statement, and in answers to the questions that follow it, with as much detail as I can.

The decision to settle the case was taken by the permanent secretary, with my support, when it became clear that, in one procedural respect only, albeit that it was an important one, application of the procedure could be perceived to have been flawed. In November 2018, Mr Salmond adjusted his petition for judicial review to advance a ground of challenge based on interaction, before the complaints were formalised, between the complainants and the person who was subsequently appointed as investigating officer.

In late December 2018, the work that was being undertaken to produce relevant documents to the court, in advance of the full hearing that was scheduled for next week, led the Government to reassess its position in relation to that ground of challenge, in the light of the full picture that had become available. After reassessing all the available materials, the permanent secretary concluded that the impression of partiality could have been created, based on one specific point—contact between the person who was appointed as investigating officer and the two complainants in advance of and around the time of their complaints being formalised in January 2018.

That prior contact was in the form of welfare support and guidance that was provided to the women who were making the complaints. It is important to stress that the support and guidance were in themselves entirely legitimate and entirely appropriate.

As was set out in the Court of Session this morning, the Government does not accept claims that that was in any way encouraging the complaints, nor is there any suggestion that the investigating officer did, in fact, act in a partial way, or that either the investigation or the decisions that were reached were partial. The Scottish Government is also confident that in all other respects the procedure that was followed was fair to all concerned.

However, as members will be aware, it is a well-established principle 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 and to agree that the decisions that she had reached about the complaints at the conclusion of the investigation should on that ground alone be set aside.

It is important to note as a simple matter of fact that today’s settlement has no implications, one way or the other, for the substance of the complaints or the credibility of the complainants. The judicial review was never about the substance of the complaints; it was about the process of investigating them. It will be open to the Scottish Government to reinvestigate the complaints, subject, of course, to the views of the complainants. However, for reasons that I am sure Parliament will understand, that will be considered only when the on-going police investigation has concluded.

It remains my view that the Government was right to begin an investigation when serious complaints were made, and not to allow them to be swept under the carpet because of the identity of the person who was being complained about. Although, in one respect, operational application of the procedure was flawed, the Scottish Government considers the procedure itself to be robust, and it remains in place.

However, the permanent secretary has rightly instructed a review of the procedure’s application in relation to the specific point that has arisen, in order to ensure that employees can have confidence in the process that will be applied should there be, in the future, a need to investigate complaints about ministers or former ministers.

There is one final point about the process that I wish to make, in the light of today’s developments. The Government has not, at any time, made public either the outcome of the investigation or the substance of the complaints, and that will remain the case. As I have already mentioned briefly, and as members will appreciate, there is an on-going police investigation that must be allowed to take its proper course. As I have just observed, the Government could also reinvestigate the complaints, in due course. In the circumstances, it would not at this stage be appropriate for me—or anyone else, for that matter—to say anything about the substance of the complaints.

In the past, questions have also been raised about meetings that I had with Alex Salmond during the investigation, so I want to address that issue now. I met him on three occasions: on 2 April 2018 at my home in Glasgow; on 7 June 2018 in Aberdeen, ahead of the Scottish National Party conference; and on 14 July 2018, at my home. I also spoke to him on the telephone on 23 April and 18 July 2018. I have not spoken to Alex Salmond since 18 July. On 2 April, he informed me about the complaints against him, which—of course—in line with the procedure, the permanent secretary had not done. He set out his various concerns about the process. In the other contacts, he reiterated his concerns about the process and told me about proposals that he was making to the Scottish Government for mediation and arbitration. However, I was always clear that I had no role in the process. I did not seek to intervene in it at any stage—nor, indeed, did I feel under any pressure to do so.

In conclusion, I say that it is deeply regrettable—perhaps that is an understatement—that, as a result of a failure in proper application of one aspect of the procedure, the Scottish Government has had to settle the matter today.

This morning, the permanent secretary apologised to all involved. In echoing that, I want also to express my regret—in particular, about the difficult position in which the complainants have been placed. I know that the permanent secretary has spoken directly to both women. I can only imagine how difficult the decision to raise concerns, as well as the publicity around the investigation and the judicial review, must have been for them in recent months. They had every right to expect the process to be robust and beyond reproach in every aspect, and for it to reach a lasting conclusion. I am sorry that, on this occasion, that has not been the case.

It is fair to say that, in recent months, all organisations have grappled with the challenge of ensuring fair and robust processes for investigation of complaints that can sometimes be historic in nature. It is because we—and I personally—take that task so seriously that the Scottish Government is determined to learn and apply lessons from this case, so that any member of staff who raises complaints in the future can have confidence that every aspect of the process that is applied will be robust. Ensuring a robust complaints process is part of the responsibility of every organisation to provide a safe and respectful working environment. As First Minister, I am determined that the Scottish Government will live up to that responsibility.

The Deputy Presiding Officer:

The First Minister will now take questions on the issues raised in her statement. I intend to allow up to 20 minutes for questions, after which we must move to decision time. It would be helpful if members who wish to ask questions pressed their request-to-speak buttons now.

Photo of Jackson Carlaw Jackson Carlaw Conservative

I note that this is the subject of an on-going police investigation, which none of us must prejudice. Given the detail in the First Minister’s statement, which we received just after 10 past 4, we will wish to reflect further on it.

The First Minister rightly mentioned the two complainants at the centre of the matter. The trouble is that good intentions towards complainants are worth little if the Government cannot meet basic standards of competence. It is clear that what we have witnessed today is deeply disappointing: a questionable investigation and, seemingly, a Scottish National Party civil war played out at the taxpayer’s expense to the tune of hundreds of thousands of pounds in legal costs.

I turn to some questions. First, in November last year, the First Minister said:

“I am absolutely satisfied that I, the SNP and the Scottish Government have acted entirely appropriately at all stages.”

Now we have learned that that was not the case. Why, only two months ago, did the First Minister confidently insist that she had got everything right? Did she just not know what was going on in her own office?

Secondly—I think that this is of crucial interest today—paragraph 12 of the Scottish Government procedure provides for the First Minister being involved at the conclusion of the process, only when the outcome of the investigation is complete. In light of that, why was the First Minister involved in a series of meetings and phone calls with Mr Salmond, about which, with respect to the latter, we are being told only today for the first time? That seems completely inappropriate in terms of the guidance in the procedure that the First Minister herself said that she had signed off just months previously.

Turning to my final question, we have learned a lot in recent months about the need to support victims of sexual harassment. In the wake of today’s events, does the First Minister think it more or less likely that complainants will have the confidence to come forward? If this is the example of the Scottish Government, what hope is there of reassuring others? Does the First Minister not agree that, above all else, people must have total confidence in coming forward when such issues arise?

The First Minister:

I thank Jackson Carlaw for his questions. I hope that he will understand my decision not to respond to the more blatant political elements of them, because I do not think that that would be appropriate. His comments about a “civil war” were simply ludicrous and, if I were to respond to them, I would not do justice to the seriousness of the matter at hand.

I turn to Jackson Carlaw’s serious questions. First, he asked about complainants. It is absolutely essential that we keep the interests of complainants at the heart of our consideration. The Scottish Government took steps—as did many other organisations—to put in place a procedure for dealing with complaints of harassment, including complaints of sexual harassment. In my view, that procedure is robust and it remains in place. In one aspect of the application of that procedure, the Scottish Government processes have fallen short, and I deeply regret that. The Scottish Government must reflect seriously on that and must be determined to learn lessons.

Jackson Carlaw quoted something that I said—I will not quote it back, because I do not have the exact words that I used—to the effect that I was satisfied with the actions that the SNP, I and the Scottish Government had taken. The investigation has nothing to do with the SNP, so I will refer to me and the Scottish Government. At that point, I believed that that was the case. Today, with the exception of the one aspect that the Government has conceded was flawed, I still believe that all the aspects of the application of the procedure by the Government were fair and robust. That is no comfort to anybody, because that one flaw has led to today’s decision.

Jackson Carlaw asked whether it was the case that I simply did not know what was going on in my Government. Here we get to the nub of the matter—I did not know what was going on in the investigation, because the procedure said that I should not know what was going on in the investigation. I was informed of the investigation by Alex Salmond, but I did nothing to intervene in that process as a result of any of that. That is an important point and one on which I am very clear.

Lastly, Jackson Carlaw asked whether this makes it more or less likely that complainants will come forward. I am absolutely clear that my responsibility and the Government’s responsibility is to make sure that we encourage, enable and empower people with complaints to come forward, by putting in place robust procedures and by doing everything that we can to make sure that those processes are beyond reproach. If mistakes are made, as a mistake was made in this case—it was in good faith, but nevertheless a mistake was made—it is absolutely incumbent on us to ensure that lessons are learned in order that we can ensure, collectively, that we encourage anybody with a complaint to come forward and feel that that complaint will be treated seriously and appropriately.

Photo of Richard Leonard Richard Leonard Labour

I thank the First Minister for advance sight of her statement.

The First Minister cannot be held responsible for the actions of her predecessor, but she is in the end responsible for the actions of this Government, and this Government has let these women down badly. Let us be clear. It takes unflinching courage to step forward and challenge powerful men and powerful institutions, which is why the women deserve so much better than this, and also why their treatment, their access to support and representation and their access to justice must be paramount and a priority.

This is a question of competence, but it is also a question of trust. If this Government cannot be trusted to deal competently with a case involving a former First Minister of this country, what trust and confidence can other women have in this Government’s handling of their complaints of harassment? This is extremely serious. Apart from a review of procedures, what further action is the First Minister now prepared to take to restore trust and confidence in her Government’s handling of present and future harassment complaints?

The First Minister:

I thank Richard Leonard for his questions. First, I am responsible for the Scottish Government. That is why I am standing here, accountable to Parliament, in the right and proper way. In this case, because of the procedure, I was not personally involved in the conduct of the investigation, but nevertheless I absolutely accept my responsibility to answer these questions and also, now, given the error that has led to the situation that we are in today, to make sure that appropriate steps are taken to learn and apply any lessons that are required.

I have said already and I say again that I deeply regret the position that two women have been placed in and it is incumbent on not just me but the Government in its entirety to make sure that, in future, we give women—and not just women, but everybody—confidence that, if they come forward with complaints, they will be treated seriously and the processes that are applied will be robust.

This is not to try to make excuses, but part of that responsibility is to be clear in fact about certain things and not allow them to be lost. The Government has put in place a procedure that is robust in all aspects bar one. Of course that is important, because it has led to the situation that we are in today, but in every other aspect the Government is confident that that procedure was applied correctly.

On the error that was made, it is important to allow the review that has been instructed today by the permanent secretary to happen and not to pre-empt any conclusions of that, but I happily give an undertaking today to report back to Parliament on the outcome of that review and any steps that will be taken as a result of it.

Finally, as I think I said in my statement, the permanent secretary has spoken to the two women involved to apologise and offer support. It will be open for the Scottish Government in the future, dependent on the views of the complainants, to reinvestigate the complaints, but of course that consideration has to await the conclusion of the police investigation. I understand that the permanent secretary has spoken to trade unions, or is speaking to them in the course of today, in order to give assurances there about how these complaints will be taken forward.

I do not want anyone in this chamber to be in any doubt about how seriously I treat this situation. It is because it is incredibly important that people have confidence in processes that I feel so regretful about what has happened today and feel the responsibility, not just for what has happened but to take whatever action is required to ensure that situations like this cannot happen again in future. I undertake to keep the Parliament fully updated as the review takes place.

Photo of Willie Rennie Willie Rennie Liberal Democrat

In the midst of all this heat, what must be protected is the right of people to speak up. Great progress was made by the me too movement, which gave people who had been silent for so long the confidence that they would be heard.

It is important that nothing stops that. Members of this Parliament should stand together and speak with one voice on that important issue. What has happened today is not a victory for anyone. I understand that the civil service procedure was flawed, but does the First Minister agree that the police must be allowed to get on with their work, free from political pressure?

The First Minister:

I thank Willie Rennie for his question and agree entirely with the sentiments and the substance of it.

I do not want to sound pedantic here, but there is a point that I feel that it is important to stress, partly in the interests of what Willie Rennie was talking about. The Scottish Government’s procedure is not flawed; we concede that the application of that procedure, in one respect, was flawed. That perhaps sounds as though I am nitpicking, but it is an important distinction.

Willie Rennie is absolutely right to say that a lot of progress has been made since the me too allegations came to light. Sometimes—and I am not talking about this case—it feels as though with every step forward we take a step back. It is really important that we all encourage people to come forward and that we make them feel able to do so.

That is why I regret so deeply what has unfolded today. I think that Willie Rennie was right to say that it is not a victory for anyone; it has no implications one way or the other for the substance of the complaints. It is important for all of us to recognise that a police investigation is under way and it is incumbent on all of us to ensure that we do not say anything that might impinge on that investigation. In the interests of everyone concerned, the investigation must be allowed properly to take its course.

The Deputy Presiding Officer:

Nine members want to ask a question and, for obvious reasons, I let the first questions and answers go on longer. I do not think that I will get through all nine questions, but if questions are short, we should get through most of them.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

We live in a society in which women and girls regularly experience harassment and sexism, whether it happens on the street, in social settings or in a workplace. What does the First Minister say to those women and girls, to give them confidence that society can change? What should we all do—men and women—to stand up to those who perpetrate such harassment?

The First Minister:

Ruth Maguire raises the most important issue at the heart of this general debate. First, we must all make absolutely clear—as I think that all members in this Parliament do—that harassment of women and girls is completely unacceptable and should not be tolerated. Secondly, we must ensure that the correct procedures are in place for dealing with harassment, and that—and this is pertinent to this case; it is where the Scottish Government has not got it right—every aspect of the application of those procedures is robust and correct as well.

The last thing that I would say—and this is a responsibility that I feel very acutely today—is that when mistakes are made, there must be recognition of and transparency around that. There must be a determination to recognise mistakes, so that the process of putting things right and learning the lessons of mistakes, rather than setting us back, helps us to encourage women to come forward in future. That is what I am determined to seek to do.

Photo of Annie Wells Annie Wells Conservative

The permanent secretary has spoken today to the two women at the centre of the case. What support will the Scottish Government offer the women in future?

The First Minister:

As Annie Wells said, the permanent secretary has already spoken to them. The Scottish Government will offer any support that they require.

I should say that one of the—I do not know whether this is the right word; it is the word that I will use—ironies of this is that it was the giving of support to the women that led to this situation. The support that was given to the women before their complaints were formalised was entirely legitimate and appropriate; the problem was that one of the people involved in giving support subsequently became the investigating officer, which created the impression of partiality, although there is nothing to suggest actual partiality.

The women will be offered whatever support they need.

In due course, as I have said a number of times, the reinvestigation of the complaints is an option, but that consideration requires awaiting the end of the police investigation.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Will the First Minister make it clear that the decision by the Court of Session today is not about guilt or innocence; the outcome is that the process for handling the complaints has been found not to have been properly carried out? Will she confirm that immediate and urgent steps are being taken to ensure that the lessons have been learned and that staff can be confident of the procedures that are in place?

The First Minister:

As I said in my statement, the lawyers among us, in particular, will know that judicial reviews—not just this judicial review—are not about the substance of issues; they are about the processes that are applied in a particular case. That is the situation here. Even if the judicial review had not ended in the way that it ended today and had gone to the full hearing that was scheduled for next week, it would never have been about the substance. To use Stuart McMillan’s language, this is not about guilt or innocence.

What has happened today is regrettable—from the perspective of Alex Salmond and of the complainants. Everybody involved had a right to expect that the process was robust in all respects. However, other processes are under way, as has already been acknowledged, and it is very important that those processes are allowed to take their course.

On lessons learned, I have already mentioned the review that the permanent secretary has instructed. As I said in response to Richard Leonard’s question, I am not going to pre-empt the direction in which that review might go. However, I will ensure that it is thorough, that it happens as quickly as possible and that Parliament is kept fully updated.

Photo of Rhoda Grant Rhoda Grant Labour

There have been long-standing concerns about the Scottish Government’s transparency. We now know that the First Minister has spoken to Alex Salmond on five separate occasions, none of which are referenced in her diaries. Will she now make the content of those meetings public? If not, why not?

The First Minister:

The contacts that I had with Alex Salmond, the dates of which I have set out today, were not Government meetings. I have known Alex Salmond as a friend and colleague for 30 years, and he was then a member of my party, a lthough he is not at the present time. People can make judgments about the decisions that I took, but one of the things that I have found out in the course of dealing with this is that there is no manual for suddenly finding oneself in a situation in which somebody whom one has worked with in that way is subject to such accusations. However, I was very firm when, as I have set out, in the first meeting he informed me of the complaints and when, after that, he made me aware of the concerns that he had about the process and that he was proposing mediation and arbitration, that—and this is the key principle for me—I had no role in the process. I did not intervene or seek to intervene. Self-evidently I did not, because what Alex Salmond was seeking did not happen. That is the important principle—and one on which I am absolutely satisfied.

Today, not just on that issue but on the more general issue, I am anxious to be as transparent as possible within the confines of an on-going investigation. As we move down and out of the investigations, if there is more information that the Government can make available to Parliament, of course we will do so.

Photo of Emma Harper Emma Harper Scottish National Party

The First Minister has just taken a question about support for the complainants. I agree with offering support. Is it possible that that support could be provided by a third party if the women preferred that?

The First Minister:

Yes, I am sure that that is possible; I will certainly feed that back. Anybody in the Scottish Government—not just the women whom we are discussing—who has concerns or issues about any minister, former minister or other member of staff in the Scottish Government should be offered appropriate support. If that support is outside the Scottish Government, it should be considered.

Photo of Donald Cameron Donald Cameron Conservative

Paragraph 12 of the relevant procedure explicitly provides for the involvement of the First Minister only when the outcome of the investigation is complete. That being so, why did the First Minister consider it appropriate to meet Alex Salmond not once but three times and to have two telephone calls while the investigation was on-going?

The First Minister:

I have set out a response to that already. 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.

All of us reflect on decisions that we take all the time. I am sure that it will be no different for me in this circumstance as it is on everything else, but I am absolutely satisfied that I acted appropriately, and I will continue to do so.

The Deputy Presiding Officer:

That concludes questions on the statement. I apologise to Bill Kidd, Daniel Johnson and Rona Mackay, whom I failed to reach.