‘It sim­ply beg­gars be­lief these peo­ple are still in their jobs. It pos­i­tively bankrupts be­lief that First Min­is­ter Ni­cola Stur­geon con­tin­ues to de­fend them’

The Herald on Sunday - - NEWS - Iain Macwhirter

HE was sup­posed to just go qui­etly. Ad­mit his per­sonal fail­ings. Beg tear­ful for­give­ness for the sex­ual ha­rass­ment of which he had been ac­cused, and then dis­ap­pear into shamed obliv­ion. Alex Sal­mond’s down­fall last March had all the mak­ings of a #Me Too show trial – Scot­land’s an­swer to Har­vey We­in­stein. But it didn’t go quite to plan. In­stead, the Scot­tish Gov­ern­ment found it­self in the dock last week – hu­mil­i­ated and shamed in the Court of Ses­sion.

The Gov­ern­ment’s lawyers ad­mit­ted the con­duct of the quasi ju­di­cial pro­ce­dure un­der which civil ser­vants in­ves­ti­gated Mr Sal­mond, and found him guilty, had been un­law­ful and un­fair. This was a calami­tous climb­down from which the Gov­ern­ment may never fully re­cover, since it has ex­posed man­i­fest in­com­pe­tence and ig­no­rance of the law among the high­est reaches of the Gov­ern­ment ser­vice.

If ever there was an in­ves­ti­ga­tion it sim­ply had to get right, not least for the women who made the com­plaints, it was this in­ves­ti­ga­tion into the for­mer first min­is­ter. The Gov­ern­ment botched it.

It emerged in pre­vi­ous­ly­with­held doc­u­ments there had been con­tact be­tween the in­ves­ti­gat­ing of­fi­cer, Ju­dith MacKin­non, and the “vic­tims” be­fore her in­quiry was even con­vened. It ap­pears from those doc­u­ments, as out­lined by Sal­mond’s coun­sel this week, that Ms MacKin­non had had to “en­cour­age” the com­plainants to come for­ward, even though the main case had al­ready been re­solved by an ear­lier in­quiry in 2013. This was an un­con­scionable vi­o­la­tion of due process, made worse by the at­tempts by the Gov­ern­ment to con­ceal it from the court.

It sim­ply beg­gars be­lief these peo­ple are still in their jobs. It pos­i­tively bankrupts be­lief that First Min­is­ter Ni­cola Stur­geon con­tin­ues to de­fend them. How can any fu­ture vic­tim of sex­ual ha­rass­ment, or civil ser­vant with a com­plaint, have any con­fi­dence in bring­ing their case for­ward, when these peo­ple are still in charge of han­dling it? There was even a sug­ges­tion they might re­open the in­quiry into Sal­mond, which makes you won­der on what planet the Scot­tish Gov­ern­ment has re­lo­cated it­self.

Sal­mond is not fully vin­di­cated, of course. That will only come if and when the po­lice in­ves­ti­ga­tion into the sex­ual ha­rass­ment al­le­ga­tions is dropped. It seems hard to be­lieve that what emerged in court about the Gov­ern­ment’s in­volve­ment with the com­plainants would not have a bear­ing on the prospects of a suc­cess­ful pros­e­cu­tion. But the for­mer SNP leader is not out of the woods yet. How­ever, the Scot­tish civil ser­vice, and Stur­geon, are now deep in the woods with him. And they are dig­ging them­selves fur­ther in by the day.

The par­lia­men­tary in­quiry or in­quiries that will surely fol­low this de­ba­cle, not least into the pre­vi­ously undis­closed con­tacts be­tween Stur­geon and Sal­mond, will ex­pose fur­ther as­pects of this case. Then there is the ques­tion of dam­ages, which Sal­mond has hinted at. This fi­asco has al­ready cost the Scot­tish tax­payer some £350,000. The bill will al­most cer­tainly be very much higher be­fore the af­fair en­ters the his­tory books.

The new com­plaints pro­ce­dure was cre­ated at the height of the #MeToo panic in 2017, af­ter Scot­tish lawyer Aamer An­war claimed he had a “cat­a­logue of abuse” about sex­ual ha­rass­ment in Holy­rood. These were never au­then­ti­cated. In De­cem­ber that year, Per­ma­nent Sec­re­tary Les­lie Evans set up a be­spoke dis­ci­plinary pro­ce­dure to tar­get for­mer Gov­ern­ment min­is­ters – not for­mer civil ser­vants, who ap­pear to be ex­empt from the rigours of this ret­ro­spec­tive quasi-ju­di­cial process. As if by magic, Sal­mond fell into the frame the mo­ment the new pro­ce­dure went live in Jan­uary 2018. We now know how.

The Gov­ern­ment tried to pre­vent the court see­ing the doc­u­men­ta­tion con­firm­ing all this, and when that failed, it col­lapsed the whole ju­di­cial re­view, by ad­mit­ting it had be­haved un­law­fully.

Stur­geon knew early on about the al­le­ga­tions against Sal­mond, not least be­cause she had a se­ries of pri­vate meet­ings with him last year, as re­vealed last week. In some of these meet­ings her chief of staff, Liz Lloyd, was also present. There are now ques­tions about whether these meet­ings breached the min­is­te­rial code.

The First Min­is­ter’s de­fend­ers on so­cial me­dia claimed last week she had no con­trol over the civil ser­vice and that this was all a “Yoon” plot to un­der­mine the SNP, or­ches­trated by the UK Gov­ern­ment. Noth­ing could be fur­ther from the truth. The se­nior civil ser­vants and the Per­ma­nent Sec­re­tary, Ms Evans, are directly an­swer­able to the First Min­is­ter, not the UK Gov­ern­ment. She is the boss.

We can be con­fi­dent Stur­geon was

not re­spon­si­ble for leak­ing lurid de­tails of the al­leged as­saults to the Daily Record in Au­gust, though she may have a pretty good idea who was. The In­for­ma­tion Com­mis­sioner is now look­ing into the ex­po­sure of this ma­te­rial. This ac­tion was not only prej­u­di­cial to Sal­mond, but could have en­dan­gered the con­fi­den­tial­ity of the al­leged vic­tims. Again, any par­lia­men­tary in­ves­ti­ga­tion will want to know names and pack drill.

But the leak is a side­bar to what is surely the worst scan­dal to hit Stur­geon since she be­came First Min­is­ter. It is the hu­man di­men­sion to this af­fair that makes it so se­ri­ous. The women who made the com­plaints against Sal­mond must be near de­spair by now, as in­quiry af­ter in­quiry bears down upon them.

Then there is the stress, ex­pense and rep­u­ta­tional dam­age in­flicted on Sal­mond.

The for­mer first min­is­ter has been de­famed on so­cial me­dia, with peo­ple rou­tinely call­ing him a “sex pest” and much worse. News­pa­per colum­nists said he was “fin­ished” and brought down by his “un­con­quer­able flaws”. He may have won his day in court, and may be in line for sub­stan­tial dam­ages, but noth­ing will as­suage that as­sault on his char­ac­ter.

The civil ser­vants prob­a­bly thought his ex­po­sure was a slam dunk. Once the al­le­ga­tions of sex­ual ha­rass­ment had been made pub­lic, new com­plaints would surely come flood­ing in.

They didn’t. In­stead, we have the dis­mal spec­ta­cle of a close-knit group of se­nior civil ser­vants and po­lit­i­cal ad­vis­ers clos­ing ranks to pro­tect their well-up­hol­stered der­ri­eres. Ni­cola Stur­geon, for rea­sons that re­main in­ex­pli­ca­ble, has elected to act as their hu­man shield.

Her loy­alty may be ad­mirable but it is en­tirely mis­placed. The peo­ple she en­trusted with con­duct­ing this in­quiry were se­ri­ally in­com­pe­tent. The pro­ce­dure it­self, which she still main­tains is “ro­bust” is any­thing but.

Sal­mond was not al­lowed to see the re­ports that con­victed him, nor was he able to ques­tion wit­nesses or the com­plainants.

It was a kan­ga­roo court, presided over by a Per­ma­nent Sec­re­tary who acted as judge and jury.

Per­son­nel de­part­ments in many or­gan­i­sa­tions are set­ting up their own pre-cooked in­qui­si­tions along sim­i­lar lines.

This whole area of in­stant law should be sub­ject to wider ju­di­cial re­view. It was borne out of the un­der­stand­able urge for zero tol­er­ance of sex­ual ha­rass­ment but, in the ab­sence of due process, it has turned into zero jus­tice.

Alex Sal­mond gives his views out­side court af­ter the Scot­tish Gov­ern­ment ad­mit­ted act­ing un­law­fully while in­ves­ti­gat­ing sex­ual ha­rass­ment claims against him. First Min­is­ter Ni­cola Stur­geon, pic­tured left, is un­der pres­sure over what she knew of the case and her con­tacts with Sal­mond on the mat­ter

Newspapers in English

Newspapers from UK

© PressReader. All rights reserved.