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.