Three years ago, two women came forward with allegations of sexual harassment against the former First Minister of Scotland. They were women who worked beside him and who, like anyone believing themselves harassed or abused by a senior colleague, felt the power imbalance keenly. Although these things can be about sex, they are always about power. They did not report it at the time; the former First Minster was arguably the most powerful man in the country and, as the current First Minister said in her evidence to the committee,
“a tough guy to work for”.—[
3 March 2021; c 23.]
After the fact, those women did come forward and we know now that a hastily written human resources policy on bullying and harassment, and its application, let them down. The policy was unfair, unlawful and tainted by apparent bias. It cost the taxpayer hundreds of thousands of pounds and the women untold injury—so much so that three years later it has never again been tested, despite the FDA union telling the committee that 50 per cent of staff told their workplace survey that they had experienced harassment by a colleague. It is a policy that has not been changed, revised or amended, and to have a harassment policy that workers are too afraid to use is a tragedy.
The one thing that could strengthen protection is to have an open and honest conversation about what went wrong, why it went wrong and how it can be made better. That is what the committee inquiry was set up to do—to have the Parliament already charged with oversight of the Executive review a systems failure so that we could fix the system and offer the thousands of people who work for the Government proper protection in future. The fact that the committee has been hampered at every turn from receiving even basic information in order to do its job does not just let down those women all over again; it lets down current and future Government employees, too.
That is the context of today’s vote of no confidence. Let us review the past few months. On 4 November 2020, the chamber voted for the following motion:
“That the Parliament calls on the Scottish Government to publish all the legal advice it received regarding the judicial review into the investigation of the alleged behaviour of the former First Minister, Alex Salmond.”
On its passage, John Swinney did nothing and missed the deadline that was set by the Salmond inquiry committee of 13 November to hand over the information. On 25 November, another motion was passed by the chamber noting the previous vote and calling on the Scottish Government to respect the will of the Parliament, but John Swinney still did nothing. It took more than three months and the threat of a vote of no confidence in Mr Swinney that had the votes to win for his position to suddenly change and a promise of publication to emerge. The Deputy First Minister said:
“we will release the key legal advice.”
The first batch of that advice provided incontrovertible evidence of incompetence on the part of the Scottish Government. It included an urgent note from senior counsel saying that the judicial review had
“a very real problem indeed”.
The issue that had alarmed counsel so greatly was that they had just learned that the investigating officer had had prior contact with the complainers. That revelation was so serious that counsel advised as an option that
“the issue is disclosed and the Petition then conceded as a result”.
It collapsed its own case.
That raised the question of why counsel were not told about that information from the start. The investigating officer said during her evidence before the Salmond inquiry that she was “upfront” about the contact at the time. Who neglected to tell counsel that vital piece of information at the beginning of the judicial review process? Perhaps the minutes of the consultation from 11 September, near the start of the judicial review, would provide some answers, but we do not know, because John Swinney will not release any details of the meeting.
Despite those damning revelations, the evidence that was released on 2 March—the only legal advice that we got to see before the First Minister’s appearance at committee—was incomplete. John Swinney would go on to release 11 further documents in relation to the judicial review after the First Minister’s appearance—11 documents about which the First Minister could not be questioned under oath.
One piece of evidence—the email chain from 6 and 7 December—refers to the First Minister questioning counsel advice to concede the judicial review. If the Scottish Government had taken that advice on 6 December and conceded, it would have saved the taxpayer hundreds of thousands of pounds in legal costs. John Swinney withheld the information about the First Minister until after her appearance at the committee. [
.] Despite tranches of documents having been dragged from John Swinney, for fear of his job, key omissions still remain. Mr Swinney will have lots of time to address those points, and I will let him do so when I sit down. He will not take my time.
On 25 October, 2 November and 13 November 2018, the First Minister was represented either in person or by a member of her staff at consultations with counsel regarding the judicial review. In Friday’s letter to the Salmond inquiry committee, Mr Swinney does not mention the 25 October meeting at all, and claims that no minutes exist of the 2 November and 13 November consultations, the latter of which the First Minister herself attended. It is inconceivable that minutes were not taken at a meeting between the permanent secretary, the First Minister and the First Minister’s chief of staff and senior external counsel. What about the other consultations on 11 September 2018, 23 October 2018 or 3 January 2019? No minutes or advice from those consultations have been published either.
The omissions in the public evidence make it clear that key legal advice that the Deputy First Minister promised has not been provided. In a note from counsel on 17 December 2018, they mention a consultation that took place on 10 November. Not only have we not been provided with any notes from that consultation; it does not even appear in the Scottish Government’s timeline of the judicial review. Who provided that timeline? It was John Swinney, in a letter of 26 October 2020 to the Salmond inquiry committee. No wonder the committee has written again to the Deputy First Minister to say that it is “extremely frustrated” and
“not reassured it has received all relevant information”.
We back the committee.
We know that we will not win today’s vote of no confidence—the votes are there for the Deputy First Minister. However, we believe that it is important and right to put on record that this is no way for the Scottish Government to treat this Parliament.
While John Swinney’s outriders will, I am sure, do a lap of honour in the press, the real losers are Scottish Government employees, who have been lumbered with a protection at work policy that everybody knows is damaged goods and that staff are too afraid to use. With a bit of transparency and candour, the committee could have helped to work out what went wrong and why, but John Swinney preferred to keep evidence secret at every turn. In a particularly damning note from 17 December, counsel told the Lord Advocate that they
“could not ... advise the Court that the Scottish Government had discharged its duty of candour.”
Given the way in which the release of legal advice has been handled, we believe that John Swinney and the Scottish Government have failed in that duty once again.
That the Parliament has no confidence in the Deputy First Minister, in light of the Scottish Government’s continued failure to publish legal advice called for in two resolutions of the Parliament on 4 and 25 November 2020.