Thank you, convener, and thank you for accommodating my attendance at Cabinet this morning, which is much appreciated, given the issues preoccupying the Government at the moment.
As is standard procedure but I will say for the record, I want to be clear that I and any civil servant giving evidence to the committee will be doing so on behalf of ministers and not in a personal capacity. I shall limit my opening remarks to the issue on which I know you are taking evidence this morning: the development of the procedure to handle harassment complaints involving current or former ministers, with the period to be addressed being October to December 2017.
Underreporting of sexual harassment appears to be endemic across most organisations and institutions. In response to the Scottish Parliament’s own survey question on what action staff had taken in relation to sexual harassment incidents that they had experienced, the most common response was that they had not done anything at all. Every single one of us has a right to a safe workplace, free from harassment. The Scottish Government recognises that as a legal responsibility and a duty of care to all employees to create a culture in which such behaviours are simply not tolerated.
The Scottish Government has been on a journey of cultural change since 2015 to ensure that the organisation is more open, capable and responsive. As permanent secretary, I have led a focus on equality, inclusion and wellbeing, which has included addressing bullying and harassment. That is still work in progress, but there is evidence of improvement. Our most recent people survey showed a marked increase in the reporting of bullying and/or harassment, with 57 per cent of those who had experienced bullying and harassment saying that they had reported it. That is up 19 percentage points from the previous year.
Staff’s positive experience of inclusion and fair treatment reached its highest-ever score of 83 per cent. That is among the highest scores in the whole of the United Kingdom civil service. The #MeToo movement that grew in 2017, drawing attention to the historical nature of harassment that had not been reported and dealt with, added welcome additional momentum to an existing programme of work.
For the Scottish Government, the logical next step was to review its procedures. I was commissioned to do so by the Scottish ministers on 31 October 2017 and by the then cabinet secretary and head of the UK civil service, Sir Jeremy Heywood, on 3 November 2017.
The Scottish Government’s response to that review, in line with wider work, was to challenge a “say nothing” culture and to give all staff from any part of the organisation confidence that concerns and complaints could be brought forward and would be addressed. After consideration of the relevant policies, it was concluded that, to address an identified gap and to clarify existing provision, a procedure to investigate complaints of harassment should be developed for former and current ministers. That built on the expectation that was set out in the Scottish ministerial code and in our existing fairness at work policy.
The Scottish Government remains ahead of many other institutions in designing and implementing such a procedure openly and transparently, particularly one to address historical allegations of sexual misconduct. We did not shirk our responsibility.
As civil servants, every process that we create must be robust and fair and open to appropriate challenge and scrutiny, and it must reflect our civil service code and its core values of integrity, honesty, objectivity and impartiality. Creating the new human resources procedure was no different. There was an extensive and iterative professional drafting process, led by the team in the Scottish Government that is responsible for offering advice on the operation of the Scottish ministerial code and all matters of propriety and ethics. It was informed by legal advice throughout, and followed human resources best practice, drawing on the Advisory, Conciliation and Arbitration Service guidance. It sought appropriate external engagement, including with our trade unions.
When complaints were raised, it would have been unconscionable and a failure in our duty of care not to investigate those complaints. However, it was accepted at judicial review that one part of our procedure should have been applied differently. I apologise unreservedly to all concerned for that procedural failure.
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We have already learned early lessons from that experience as part of work that is being led by our people directorate. We also await the findings of the review that I commissioned, which is being externally led by Laura Dunlop QC and is now under way. It remains the case however, that the investigation of those complaints was the right thing to do.
I would also like to take the opportunity to underline for the record the Scottish Government’s commitment to co-operating fully with this committee. That commitment is underpinned by action and evidenced by multiple dossiers of information that have been preserved and provided to the committee within agreed timescales. That work has been complex and time consuming to ensure compliance with legal, data protection, and confidentiality restrictions. I am happy to elaborate further on those points to demonstrate the seriousness with which the Scottish Government has approached its engagement with the committee, and the additional measures that were put in place to ensure that all relevant information would be provided before and in parallel with responding to the Covid-19 crisis.
In closing, I want to make three important points. First, the Scottish Government was and remains ahead of many other institutions in designing and implementing a procedure to address harassment, particularly to address historical allegations of sexual misconduct. I am clear that the Scottish Government acted in good faith. The transparency of our written procedure means that it is open to challenge and scrutiny. I accept that scrutiny. We shall apply the learning.
Secondly, the procedure was and is to safeguard all staff and to assure them of the standards of behaviour that they are entitled to expect in their workplace. It was developed with the professional rigour and values that you would expect from the civil service, informed by legal advice and HR best practice. However, it was designed as an HR procedure not a legal instrument.
Thirdly, and finally, in her 2018 report into bullying and harassment in the House of Commons, Dame Laura Cox found:
“people who have been bullied or sexually harassed, or who have seen this happen to others, are generally reluctant to come forward and report it.”
By creating the culture and environment in which complaints of this nature could be raised, and in which subsequent investigations of those complaints could take place, the Scottish Government did not take the easy path, but it is the right one.