The Scottish Government’s handling of harassment complaints, and the subsequent judicial review, was ‘seriously flawed’, according to a report issued today by Holyrood’s Committee on the Scottish Government’s Handling of Harassment Complaints.
The Committee was established to find out what went wrong with the Scottish Government’s procedure for dealing with harassment complaints which ultimately led to the Government conceding a legal challenge in January 2019 brought by the former First Minister Alex Salmond.
The Committee has now made a series of recommendations to ensure that what went wrong never happens again and there can be confidence in future complaints processes.
Committee Convener, Linda Fabiani MSP said:
“Throughout this inquiry there has been speculation and rumour around the work of our Committee.
“I have always been clear that at the heart of this inquiry are two women who made complaints of sexual harassment.
“These women were badly let down by the Scottish Government, but they have also been let down by some members of our Committee. I am truly dismayed by the hurt some of the Committee leaks will have caused them. I apologise to them unreservedly. This is not who we should be as a Committee of this Parliament.
“Our inquiry was a chance to reflect on what went wrong with the Scottish Government processes and ensure that the failings these women experienced never happen again.
“There are undoubtedly some extremely serious findings in our report and it was clear to the Committee that there were serious flaws made in the Government’s application of its own process. The Government must address these to ensure anyone who experiences sexual harassment has the confidence to come forward.”
The Committee split its inquiry into four phases. On the development on the Government complaints procedure the Committee states that:
• The speed at which the procedure was developed in the light of the Me Too movement could have had a detrimental impact on the procedure in terms of its clarity and robustness.
• More time taken over the drafting of the procedure would have allowed time to develop supporting guidance which would have provided more support and information for those involved in the process including complainers, those complained about and witnesses, as well as providing clarity for those charged with applying the procedure to the investigation of a complaint.
• The Scottish Government should introduce an independent support service and an independent system for reporting and investigating complaints.
On the Scottish Government’s handling of complaints, the Committee’s report:
• Makes clear that the multiple roles being fulfilled by the Permanent Secretary during the complaints process should have been seen as a risk.
• To ensure confidentiality of the process, expects the Government to undertake a thorough review and implement demonstrable measures, to minimise the risk of a leak of information ever happening again.
On the handling of the Judicial Review the report states:
• That the Scottish Government was responsible from an early stage for a serious, substantial and entirely avoidable situation that resulted in a prolonged, expensive and unsuccessful defence of the legal challenge.
• Had the Scottish Government identified all relevant documents and complied fully and promptly with its duty of candour at an early stage, the prior contact with the complainers, which was subsequently to prove fatal due to the failure to disclose key evidence, would have been brought fully to the fore.
• The Scottish Government’s handling of document disclosure during the judicial review proceedings was seriously flawed and it was this catastrophic failure to disclose documents and to allow statements to be made to the court that all documents had been disclosed when they had not been that led to the awarding of a high level of costs.
The final section of the Committee’s report covers the Ministerial Code. The Committee agreed that James Hamilton’s report is the most appropriate place to address the question of whether or not the First Minister has breached the Scottish Ministerial Code and made the following observations, agreed to by majority:
• The Committee finds it hard to believe that the First Minister had no knowledge of any concerns about inappropriate behaviour on the part of Mr Salmond prior to November 2017. If she did have such knowledge, then she should have acted upon it. If she did have such knowledge, then she has misled the Committee.
Alasdair Allan MSP, Linda Fabiani MSP, Stuart McMillan MSP and Maureen Watt MSP all disagreed with this paragraph on the grounds that it does not distinguish between bullying behaviour and sexual harassment. Some evidence to the inquiry indicated that the former First Minister could display bullying behaviour, the First Minister explained that he could be very challenging to work for but there has been no suggestion the First Minister was aware of sexual harassment.
• The Committee notes that there are contradictions as to the purpose of the meeting on 29 March 2018 and what took place at that meeting. However, the First Minister’s failure to recollect this meeting in the weeks following her Statement to Parliament on 8 January 2019 and her account of this meeting is at odds with that of Mr Salmond who asserts that his former Chief of Staff told him that the First Minister was so informed on 29 March. The Committee accepts that there may be differing recollections of this meeting and is not in a position to take a view on whether the former First Minister’s or the First Minister’s version of events is the more persuasive, although it notes that the former First Minister’s version has the benefit of being confirmed by others.
Alasdair Allan MSP, Linda Fabiani MSP, Stuart McMillan MSP and Maureen Watt MSP all disagreed with this paragraph.
• The Committee notes that there is a fundamental contradiction in the evidence in relation to whether, at the meeting on 2 April 2018, the First Minister did or did not agree to intervene. Taking account of the competing versions of events, the Committee believes that she did in fact leave Mr Salmond with the impression that she would, if necessary, intervene. This was corroborated by Duncan Hamilton who was also at the meeting. Her written evidence is therefore an inaccurate account of what happened, and she has misled the Committee on this matter. This is a potential breach of the Ministerial Code under the terms of section 1.3 (c).
Alasdair Allan MSP, Linda Fabiani MSP, Stuart McMillan MSP and Maureen Watt MSP all disagreed with this paragraph.
• The Committee notes the First Minister’s explanation that it would have been inappropriate for her to have reported the meeting on 2 April 2018 to the Permanent Secretary given that a) it concerned the revelation of an investigation into complaints under the Scottish Government’s procedure, b) the First Minister had no role in that procedure and c) the First Minister took the view that to have intervened would potentially have prejudiced the investigation. However, the Committee is concerned that it took until 6 June 2018 (and several meetings and messages exchanged) for the First Minister to inform the Permanent Secretary of the fact of her meetings with Mr Salmond at the point that legal action was being contemplated. Given the sensitivities of the matter and the fact that it related to internal government complaints handling, the Committee believes that it was inappropriate for the First Minister to continue to meet and have discussions with the Former First Minister on this topic. She should have made the Permanent Secretary aware of her state of knowledge of the complaints and the facts of the meetings at the earliest opportunity after 2 April at which point, she should have confirmed that she would cease to have any further contact with Mr Salmond on that subject.
Alasdair Allan MSP, Linda Fabiani MSP, Stuart McMillan MSP and Maureen Watt MSP all disagreed with this paragraph.
A copy of the Committee’s report can be found here: https://sp-bpr-en-prod-cdnep.azureedge.net/published/SGHHC/2021/3/23/3dc69e08-899e-4d55-aa77-83f08cc4a815/SGHHC2021R1.pdf
Background
Established in 2019, the remit of the Committee was:
“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.”
The Committee began taking evidence from witnesses in August 2020 and considered and published more than two thousand pages of information. It undertook over 40 hours of questioning including hearing from the First Minister for nearly 8 hours.
More information about the work of the Committee can be found on the its webpages:
https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/111052.aspx
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