Committee on the Scottish Government Handling of Harassment Complaints

Meeting date: Tuesday, September 8, 2020

Official Report 694KB pdf

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Development of Policy on Handling Harassment Complaints

Good morning, and welcome to the 6th meeting in 2020 of the Committee on the Scottish Government Handling of Harassment Complaints.

Our first item of business is a follow-up evidence session with the permanent secretary, after her initial appearance before the committee on 18 August. The session will focus on phase 1 of the inquiry, which is on development of the policy on handling of harassment complaints.

I remind all those who are present and watching that we are bound by the terms of our remit and the relevant court orders, including the need to avoid being in contempt of court through identifying certain individuals, including through jigsaw identification. The committee as a whole has agreed that it is not our role to revisit events that were the focus of the trial, as that could be seen to constitute a rerun of the criminal trial.

Our remit is:

“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 more we get into specifics of evidence—time, people and cases—the more we run the risk of identifying the people who made complaints. The more we ask about specific matters that were covered in the trial, including the events that were explored in it, the more we run the risk of rerunning the trial.

Wherever possible, can witnesses, as well as members, please avoid discussion of the specifics of concerns or complaints, including those that predated the harassment complaints procedure that was being produced, and avoid naming specific Government officials?

With that, I welcome the permanent secretary, Leslie Evans, and begin by inviting Ms Evans to make a solemn affirmation.

Leslie Evans made a solemn affirmation.

Thank you for coming today. This is a continuation of our previous session.

I will pick up on an issue that was left hanging at the end of the previous meeting.

Without going into individual cases, are you aware of any changes in working practices that resulted from concerns that staff expressed about behaviour, including the behaviour of ministers? If so, what were those changes?

I am not aware of such changes. I would not necessarily be aware of such changes, unless I was particularly close to the office in which they occurred. That is not to say that changes do not take place, but I am not aware of any specifics. I am not sure whether you are talking about specifics; I appreciate that we do not want to get into those.

You are not personally aware of any changes.

No.

When the trade unions came to give us evidence last week, they told us that they were aware of a number of situations in which the civil service had, rather than try to resolve the situation, moved individuals who had raised concerns to different positions or departments, or had assigned them to work for a different minister. Is that something that you are aware of?

I am aware that when there is a local issue within an office or between individuals, we work as hard as we can to ensure that that is resolved informally. That is almost always the best way. It can happen through a range of processes; it might be done through mediation or through support from human resources staff, or by introducing some kind of third party. Sometimes, such a situation might not be resolved in the way that we would like it to be resolved.

You will know, and members who have been ministers will know, that moving people around in jobs happens quite frequently, anyway, usually after a few years. I would not say that that is a traditional route: it is an option. Our preference will always be to ensure that we can first spot and prevent issues, and then that we resolve those issues through a range of informal mechanisms, which include mediation and conversations of that kind.

So, such cases would not necessarily escalate to a formal complaint. You are saying that they would be dealt with on an informal basis.

Best practice is to try to resolve things informally, wherever possible. That is the approach that we take and it is what our polices reflect. It is named in that way in the fairness at work policy and in the 2017 process. Wherever possible, we try to get informal resolution through mediation, conversation or support, and by identifying any additional support that is required.

The trade unions told us last week of their concerns about the level of complaints and concerns that had been raised with them. The level of complaints within the Scottish Government seemed to be very high, compared to that in the rest of the civil service.

Can you give us a flavour, from your experience, of the civil service? Is there a particular issue in the Scottish Government that is more acute there than it is in other parts of the civil service?

I found that to be quite puzzling. I am not complacent. You are right to differentiate between concerns and complaints. A complaint would normally mean that we have triggered the formal procedure.

There are two or three issues. First, I did not recognise some quite specific figures that the FDA union brought out about the numbers of ministers and the numbers of complaints over a period of something like ten years. I am not sure from the evidence which ten-year period that was. There was talk of multiple Administrations and there was quite a lot of conversation about all that. I do not recognise that, in the light of the hard data that we have now—in particular, going back to the people survey of 2019. That does not reflect what I know about the organisation.

As I said, we have very few formal complaints. In fact, over the past 10 or 13 years, we have had only a handful. I would expect that, for the majority of the time, informal concerns would be raised in the line, as we say, with a line manager, or with support from HR or through the union, which is a perfectly respectable and appropriate route for people to raise concerns through. In fact, people might prefer to go to the union than to somebody whom they know in HR. I understand that completely.

Many such issues will, rightly, have been resolved by a person saying, “I’m concerned about this, and I want you to hear what I have to say.” That is not to say that we should sit and watch that emerge; we should still take action—predominantly, preventative action. The data that is coming through at the moment perhaps shows that there is an increased appetite among people for being prepared to raise bullying and harassment concerns in other parts of the UK civil service. I think that it was Dave Penman from the FDA who said that he feels that the Scottish Government has done more in the area than the House of Commons and the Cabinet Office have done.

Were you, or are you currently, the reporting or countersigning officer for annual reporting of complaints?

I would have to check that. That would normally go through the head of HR and then to the person who is responsible for all corporate procedures, who is the director general in charge of that area. Clearly, if there is an issue or a reporting process to go through, I would be informed of that.

But would there normally be such a process?

Yes—there would be somebody who would be aware of, and have responsibility for, checking on data and reporting of that kind.

I have a final question. Did you, personally, ever experience bullying behaviour in your career in the civil service? For example, were you ever on the receiving end of shouting from a minister?

Over my career as a whole, I have had people shout at me. I suspect that very few people who are here today have not had that, and that includes the civil service.

Was that from ministers?

Are you asking whether ministers have ever shouted at me?

Yes.

Yes.

They have?

Yes.

Does that concern you?

Well, we need to put that in context. I am not suggesting that it is a daily occurrence—

Of course, we have former ministers round the table today.

We do, indeed, and I have worked with many, if not all, of them.

We are talking about the unique relationship between civil servants and ministers; it is unlike anything else. That is not to say that it is not governed by conditions and criteria of good behaviour—of course it is. However, if you ask anybody in any organisation whether they have ever had a conversation with somebody else that has ended up with shouting, they will say that it has happened, although not very often.

I understand that people are passionate, committed and hard-working; that applies to people in the civil service and the ministers with whom I have worked. However, there is a line to be drawn, and I would draw it. There is passion, commitment and the occasional loss of temper, and when behaviour crosses that line, that is different.

Did it ever cross that line, in your experience?

Do you mean in terms of people shouting at me?

Yes.

No, it did not.

Maureen Watt wants to come in. Please do not shout at Ms Evans.

I just want to say that, when I resigned as a minister, Ms Evans wrote me a note saying how well I had dealt with staff, so there are both sides of the coin, among ministers.

Is that it?

That is it.

Thank you very much for coming back to see us, Ms Evans.

Two weeks ago, we learned from James Hynd that, in his words, “things were said” to him as part of an informal hum of rumours about bullying and sexually inappropriate behaviour by Alex Salmond and other ministers. When did you first pick up on those rumours that were circulating about Mr Salmond’s behaviour?

I am not sure that I understand the question. Are you talking about James Hynd saying that there was water-cooler talk?

There were water-cooler conversations. It was the scuttlebutt at the time. When did you first pick up on those rumours?

I cannot comment on when I picked up on rumours. I understand that there were rumours, but I cannot—

Did you know about them?

Yes, I did—absolutely.

Just to bookend Murdo Fraser’s final question, did Mr Salmond ever shout at you?

I do not remember him shouting at me.

10:30  

In his submission, Sir Peter Housden told us that when he was permanent secretary he would deal personally and informally with allegations of bullying and harassment by ministers. Did he ever discuss that quiet handling of concerns about ministers either formally or informally with you, as the director general at the time?

We had conversations about conversations that I had had with individuals about Mr Salmond’s behaviour.

You replaced Peter Housden as permanent secretary in summer 2015. Did you have any kind of handover with him prior to that?

Yes. I took over on 1 July, but I was aware of my appointment three or four weeks before that. We were working quite closely together, although I was still a director general.

We all know that with a handover, there is always a formal date and an informal date, and on the informal date one might be told—I am saying this in quote marks—where the bodies are buried. As part of that, did he ever discuss either formally or informally with you how you might need to handle complaints against ministers, how he had done that in the past and how you might take things forward?

I do not recall that.

Did he ever offer examples of occasions when he had raised concerns with ministers about their behaviour?

No, I do not recall that he did that, particularly. He might have done; I do not remember it.

In your five years as permanent secretary, have you ever had to take similar action and handle concerns about ministers’ behaviour with them on an informal basis?

Yes—informally. As I said, very few formal complaints have come through. I think that there have been three since 2007.

Was that matter concluded to the satisfaction of the person who raised the concerns?

Informal resolution will always be difficult, because you need to invest a lot of time in both parties. My intention would always be to ensure that people are comfortable about the informal resolution. Of course, if they are not, they have the option to move the matter on to a formal process.

Can you quantify how many times you have had to address concerns informally?

I cannot really quantify that over five years. It is not a frequent occurrence, but it is one that I pay attention to.

Has it been a handful of times or has it been more frequent than that?

I would say that that has probably happened around a handful of times. Relationships, such as between ministers and civil servants and between civil servants, are part of the warp and weft of how an organisation works.

Good morning, Ms Evans. You will recall that the committee has requested a separate written statement that provides information about investigation under the procedure. We have had correspondence from the Deputy First Minister explaining that that has been delayed. Can you advise the committee when we can expect that information?

I think that the DFM has said that he will come back to us on that. I cannot give you an exact date, at the moment.

Given that you are the principal policy adviser for the Scottish Government, do you have any inkling? Can you give us any reassurance that the information will be forthcoming in the not-too-distant future?

We would always want to make sure that things happen in the not-too-distant future, as you will understand. The issue that we have is that we are taking legal advice about what options are available, so we will need to come back to you.

I would not make any assumptions about what I understand.

How confident are you that the review of the Scottish Government’s harassments complaints procedure will be completed by the end of the year? I think that in correspondence you intimated that it could be extended. Can you give us some confidence about when that work will be completed?

The work will be undertaken by Ms Dunlop, as you know, who will be supported by senior civil servants. How long she feels she needs to undertake the review will be very much in her hands. I would prefer that it not be too long—not least because we are keen to learn from the recommendations that Ms Dunlop’s analysis produces. We have our own lessons to learn, as well. I would like to combine that with what comes out of the inquiry, so that we can have the best assessment of what we need to reflect on, and the recommendations that are available for us to consider. I would prefer it to be sooner rather than later, but that is quite rightly very much in the hands of the person who is undertaking the review—Ms Dunlop.

I think that the correspondence intimated that the review would be done by the end of the year.

I will be delighted if it is done by the end of the year.

Thank you. My final question is about the ninth version, or iteration, of the policy, which was recast by Ms Richards on 5 December. Can you confirm for the record that that version says, with respect to former ministers, that

“The Permanent Secretary will ... decide whether the complaint is well-founded”

and “also determine” what “action is required”?

I cannot say off the top of my head whether that is the final text, but it would be what we apply in terms of the procedure, as it is now.

Thank you.

Permanent secretary, I wonder whether you have had the chance to look at the evidence that the unions gave us last week and whether you have any reflections on some of what they said about the development of the policy. I am thinking particularly about the emphasis that they put on how they felt that an independent element to the whole process that we are talking about would have been helpful.

Yes. It is helpful to dwell on the point of independence generally because it has been talked about quite a lot, starting with the unions. I understand from HR that the unions raised in dialogue with HR colleagues the issue of independence, but it did not form part of their substantive amendments and evidence in relation to things that they would like to change as part of the complaints policy; and I do not think that they raised it as part of the proposal of work during the fairness at work considerations either. Although I believe that it was raised, it was therefore not part of their substantive changes, and my understanding is that we took 80 per cent of their proposals for changes on board either in spirit or word for word.

That is not to say, of course, that there are not opportunities to raise the issue. I know that, since that time, the FDA in particular has been vociferous about the element of independence in these kinds of procedures. I think that it would claim that its pressure on the Westminster procedure—the one that is now operating there—meant that it was revised in accordance with that. Since 2019, independence has played an element in that procedure. However, although independence was raised, it was not part of the substantive changes that the unions wanted to see in the procedure here.

One of the arguments that the unions made was that, although an independent element early on in the process would not be normal in another workplace, the unusual situation of the workplace in the Government with ministers who do not have a normal employment relationship with the people working around them meant that it would have been merited. Looking back, do you think that it would have been helpful to have introduced that into the process?

I agree that it is a unique relationship and it is unusual for any employer to introduce independence into a procedure of that kind; normally, that comes after the initial exploration and investigation. The other point that I would make is that there are issues of trust and confidentiality in encouraging complainers to come forward, and an independent element, depending on when it comes into the procedure, might have an impact on that. Of course, when we produced and developed the procedure, we were very cognisant of Police Scotland advice on confidentiality and, indeed, a complainant-centred policy.

My understanding is that the inquiry into bullying and harassment in the House of Lords found that a complaint being referred to the Parliamentary Commissioner for Standards was described as a nuclear option in the face of which members would close ranks, so I think that such action depends on the point and the stage of a complaint. However, I am aware that the review by Ms Dunlop, which we were talking about earlier, might well reflect on independence becoming part of the procedure in the future or on how it is applied. I am open to the recommendations of that review and, if independence comes into those, I agree that it would be something that we need to think very carefully about.

The other question that the unions raised about the development process concerned the system by which the Government introduced lived experience into it. Again, I do not know whether you have had a chance to look at what they said about that—their reaction could be called unenthusiastic—but did you have any view at that time, or do you have a view now, on reflection, about what they said about some of the questions around how and when lived experience was introduced into the development process?

One of the things that we probably need to get correct here is that, as I mentioned before, lived experience is an important part of our policy development process. Actually, however, our main concern—I think that this came up in Nicky Richards’s evidence—was to ensure that we tested the procedures with staff who were likely to be using them. Admittedly, we were dealing with a draft process at that point, but that was important and is part of our traditional practice, in HR terms. We ensure that people understand what will happen if they take a particular decision or decide to go down a particular route.

Lived experience is still a valid and important part of how we develop policy in the Scottish Government as a whole. However, in the circumstances in which this was shared, it was very much to do with people being clear about what might happen, what the procedures would be and what to expect if they were to decide to turn their concerns into complaints—some did that and some did not, but it was important that they knew what would unfold if they did.

Welcome back, Ms Evans. At our previous session, you referenced an incident in which Sky News was interested, in relation to which the former First Minister had contacted members of staff. Can you tell me when you told the First Minister about the Sky News issue? Was it just verbally? Was anyone else in the room? What was the outcome?

It was early in November, and it was verbally.

Was anyone else in the room?

I cannot remember, to be honest.

Okay, so there could have been.

There might have been.

That is helpful.

Was one of the staff members who reported the contact by the former First Minister with regard to the Sky News interest one of the complainers?

Not to my knowledge, at that time. I came to know about the Sky News issue through two different sources: one person who had been contacted and another who had not but who knew that people had been contacted. At that time, those were the two routes through which I was alerted to this issue.

Let me be clear, because you said:

“Not to my knowledge, at that time.”

Did any of them go on to be complainers?

I suppose that I am differentiating between then and now. Then, I had no knowledge; now, I do.

So, one of them went on to be a complainer.

I am so not sure about that. I am choosing my words carefully not to be unhelpful but because I am alert to the constraints.

I understand that. I would be happy if you wrote to the committee with that clarification.

I am happy to do that.

In our previous session, you said:

“I was not close to the procedure development, as you would expect”.—[Official Report, Committee on the Scottish Government Handling of Harassment Complaints, 18 August 2020; c 27.]

You have given me the impression of distancing yourself from the development of the policy and the procedure. I am sure that you did not mean to do that, because the documents that we have seen tell quite a different story. We have James Hynd reporting to you; HR was in regular discussion with you, keeping you informed; you made comments on the draft procedure as it developed; your private secretary was in email discussion with the First Minister’s chief of staff—you know, there was a lot of activity. Indeed, you met directly with the First Minister to approve her letter of commission of 22 November. On that basis, and given that you are a key decision maker in relation to the policy, is it not the truth that you were driving the process, as I would expect, because it was a commission from the Cabinet?

No, because the person who drives the processes is the person who is the lead responsible officer for completing the task, particularly with something as important as a Cabinet commission. If I led and was involved with every Cabinet commission, I would not have time for very much else.

10:45  

There is a process of delegation. James Hynd drove that process and took regular advice, as members know from previous HR and legal evidence. I was kept abreast of what was going on, which was important for two reasons. First, it was a Cabinet commission, and it is understandable that I would be kept abreast of it, as it was very particular and high profile. Secondly, I and my role featured in the procedure. Therefore, that would have been normal.

I am not trying to distance myself. That was a perfectly normal and traditional way of keeping me abreast of something that was important and on the First Minister’s radar. Things that are pronounced on the First Minister’s radar are, of course, important to me.

Absolutely. However, there is nothing that I have said about those interactions that is incorrect.

Do you mean that people were briefing me and I was having meetings with them?

Absolutely.

No. That would be a normal part of daily life. I should point out, of course, that neither James Hynd nor Nicola Richards reports to me; they report to their own line managers on their work.

Sure, but there were numerous emails backwards and forwards with either you or your private secretary.

My private secretary and my private office were heavily involved on my behalf, as they are with most of the business that I undertake.

Yes, but the private office is the extension of the minister. I have been a minister, and I know that that is how it operates.

They undertake work on my behalf on a regular basis.

Sure. I want to move on to potential complainants. Were you aware that potential complainants were informed that Judith Mackinnon would be appointed as the investigating officer weeks before the policy was even signed off and more than a month before her appointment was made?

I was aware that she had contact before she was appointed as the investigating officer, as, indeed, the procedure enabled and recognised. I was not aware that she was talking to them closer to hand about the fact that she would be the investigating officer, but I was aware that she was following the procedure, as she would do, impartially, appropriately and professionally, in talking to and supporting any people with concerns who might decide to turn those into complaints about the options that were available to them at any one time, including how the procedure would move on.

Finally, from your previous evidence and James Hynd’s evidence, he was the first person to decide to propose the policy for former ministers, despite that not being mentioned in the Cabinet on 31 October 2017 or in the parliamentary statement of the same date. I understand that the first draft or the first iteration of the new policy specifically on former ministers was on 8 November. We know that James Hynd sent that directly to you on 10 November in an email. Is it not the case that you and your office had discussions with Judith Mackinnon and Julie MacFadyen on the question of producing a route map including former ministers on 7 November, which was the day before 8 November, that that route map was sent to James Hynd on 7 November, and that he replied to you at 21:24 on 7 November? If that is correct, can we see the route map and any minutes and correspondence that are relevant to it? Unfortunately, I do not seem to be able to find that at all in the information that the Government has supplied to us, and that is of great concern. Can you advise whether that is correct?

There are a lot of dates and information there. I can tell you two things, which I think I mentioned in my previous evidence. The decision to include former ministers came from an analysis that was already under way and work that had already been undertaken on the fairness at work procedure. From the very beginning, it was agreed that the tidying-up—to use a colloquialism—or the making consistent of the fairness at work procedure would always address the issue of former ministers.

I am surprised if the route map has not been shared as part of our paperwork, because it was heavily promoted as part of showing people which routes were best for them to choose, including going to the unions and other places to gain support if they wished to raise such a concern. If the route map as produced has not been shared with the committee, I see no reason why we should not send it to you.

It is not only the route map; it is the exchange of correspondence. On 7 November, a day before the first iteration of the policy, you were asking about former ministers in the context of the route map, and the route map was shared with James Hynd. He replied on the same day. I am keen to understand that exchange of emails. I do not just want the route map; I want the exchange of correspondence that underpins it, which would be very helpful for the committee.

I have not seen those documents, so I am not aware of them. If we can share them with you, and there are no constraints around them, I do not see why we would not.

Excellent. I look forward to that. Thank you.

You are welcome.

I will pick up on points that were previously explored by colleagues.

Earlier this morning, you suggested that it was important to test procedures with staff who are likely to rely on them. I want to understand whether the same emphasis was placed on hearing from staff who had experience of reporting a complaint or concern under the existing procedure.

I am trying to think carefully about what would be helpful to you here. I think that we had information already, although HR would be able to confirm for me. From people who had used the fairness at work procedure, which has been extant since 2010, in HR, we would know how the procedure had operated and how well it had operated. That is one of the reasons why we knew that we needed to reflect on how it might need to be revised. My understanding is that that reflection would include people who had used the fairness at work procedure and worked closely with HR in doing so. Our knowledge of previous procedures and whether they were working was very much based on how well they had operated and how they had felt to the people who had been engaged in them, and we would have used that information as part of our understanding of what needed to be addressed.

Between October and December 2017, when people were coming forward with concerns, we wanted to be as clear as possible about what might have helped them in the past, which we could then include in a subsequent procedure. As we developed the 2017 procedure, some of what we were thinking about enabled some things to be stopped short, prevented or reduced in some way. We always look to say that we will try to prevent any informal procedure, let alone a formal one, from being required. That was part of our conversations with people at the time.

On the informal approach to dealing with concerns, do you regard moving individuals who raise concerns as the solution to a problem, or do you think that it would be more helpful to step back and address the broader problem? If moving people becomes habitual, is there enough oversight, such that someone would realise that there was a requirement to step back and find out why the moves were required in the first place?

As I mentioned earlier, it will always be preferable, important and part of our duty of care responsibility to get to the root of the issue. Merely moving somebody in the circumstances to which I think you are alluding will not do that. In my time as permanent secretary, I have been very clear about that. Wherever possible, we need to prevent such issues, but if they do arise, merely moving people does not, in itself, get to the root of the issues. One of the reasons why we are very keen to ensure that we offer and explore all options of mediation, support from HR, line management support and so on is to ensure that those issues are, if not prevented, at least spotted. We are now training our line managers to spot the signs of such concerns, and, wherever possible, prevent them.

It is another reason why we have strengthened the line management, and the seniority of the line management, in supporting our private offices. One of the things that I have introduced is to have somebody in a pastoral care mode who oversees private offices, which often are places of great stress and involve working long hours. We are also making sure that people have the opportunity to raise concerns as part of our regular HR regime. Every single person in the Scottish Government should have a monthly conversation with their line manager. That approach was introduced by the previous permanent secretary, just before I become permanent secretary, and I have tried to embed it.

That is about wellbeing—not just about business or about how the organisation operates and how effectively that individual operates in their team and as an individual. We encourage people to use a template, which enables them not just to raise the business of the day—always the temptation—but issues that are of concern to them at work, in their relationships with the people with whom they work, or at home. I can give the committee a lot of other examples. We try to do specific things to ensure that people feel comfortable and confident in their working environment.

A situation can obviously become the subject of a complaint despite the best efforts to prevent its arising or to deal with it informally. The trade unions raised concerns last week about the risk that the lack of an independent process continues to present. I am aware of the on-going review, but you surely agree that not to insist on independence in any future iteration of the policy would be surprising.

That point will be raised, as it was with the Westminster procedure. As I said earlier, we need to be careful as to when and how the independence of process would manifest itself. I absolutely agree that the relationship between civil servants and ministers is unique and that there is, of course, a power base to it. However, I want to be thoughtful about how and where independence is introduced so that it adds value and benefit, and addresses the issues that you have raised without becoming a burden.

We need to think carefully so that an independent process does not become so byzantine, complex and unyielding that it deters people from being prepared to use the formal procedure to bring a complaint if they wish to do so—we need to strike a balance. I nevertheless look forward to the results of the Laura Dunlop review, which might include independence of process.

In your previous evidence of 18 August, you state that in developing the 2017 policy,

“we took advice from Police Scotland”.—[Official Report, Committee on the Scottish Government Handling of Harassment Complaints, 18 August 2020; c 35.]

Can you confirm to whom “we” refers?

“We” refers to HR.

Can you confirm who from Police Scotland was contacted with the request that they should give advice? Did the same person give that advice?

I cannot give you that information, but I am sure that we should be able to look into that, provided—

Was not that something that interested you? Did you not think to find out a little bit more about it?

The development of the procedure and the contact with the Advisory, Conciliation and Arbitration Service, Police Scotland and so on were within the remit of the project that James Hynd laid and supported, and with which HR helped under Nicola Richards. I was not involved.

You were interested in the content of that advice however, because you were able to tell us today that the process was to be victim-led, that the individuals who brought the concern or complaint would be to the fore, and that there should be confidentiality. Were you aware of anything else in that advice?

I have to reiterate that I was not involved in seeking that advice, nor would I have been. It is not my role to ask Police Scotland whether it will contribute to a policy: HR did that. I subsequently became aware that Police Scotland had contributed on areas in which it has experience. It was quite right and proper for HR to have those conversations with Police Scotland in that context, but I was not involved.

You were not involved, but you were aware of the advice.

I am now.

In 2017, the policy went on to allow, or to provide through the route map, that the Scottish Government could bring complaints directly to the attention of the police. On 18 August, you told the committee that

“three of the complaints should be referred to Police Scotland.”—[Official Report, Committee on the Scottish Government Handling of Harassment Complaints, 18 August 2020; c 36.]

Who took that decision?

When we said “three complaints”, we meant three incidences, which is correct. We now get into the investigative element of our committee discussions. The Scottish Government took that decision, based on legal advice.

The Scottish Government is not a person; people represent the Scottish Government. It might have been you representing ministers, or it might have been another person. Who was the person, or the group of people, who took the decision?

11:00  

I represent the Scottish Government so, ultimately, all decisions that are taken by officials come through me—rather, they do not come through me, but they are represented by me. Based on legal advice towards the end of the investigative period we referred the matter to Police Scotland.

Did you inform the police, or did someone else?

I did not do that.

Do you know who informed the police?

I am not completely aware of who that might be. We could probably find out. I would not want to name them, of course, but I am sure that we could find out who took that decision.

Do you have the designation of the person who might have done that?

I suspect what will have happened, but I do not know for sure, but it would be expected that all the information be passed over to the Crown Office.

[Inaudible.]

I do not know who did that, but I can find out if that is necessary.

I refer you to document YY064, which contains a letter dated 10 November 2017 from you to Gillian Russell, in which you make some comment about briefing and working with Judith Mackinnon, to

“arrange for legal advice around the limits to confidentiality, process for note taking and when you would need to pass on information to Police/People Directorate.”

It seems from that that you had a very clear idea that the person would possibly be Gillian Russell. Can you remember whether that was the case?

I think that we are confusing and conflating two things here. There was a decision, which you rightly ask me about, regarding the Scottish Government referring three specific instances to the police at the end of the investigative period—the investigation—after my decision report.

The period that you are talking about is to do with the role of Gillian Russell—I am sorry; I should not have mentioned her name. It is to do with the role of the individual who was acting as the confidante and sounding board at the time, which included ensuring that all parties who might come to her with concerns were clear about their options and where they might go. That might include their going to the police, which is included within the procedure. Individuals are able to go to the police at any time with concerns, if they feel that it is appropriate to do so. They do not need to do that through the Scottish Government.

So, you have confirmed that you took the decision that those complaints be referred to the police. Was the First Minister informed of that decision?

She will have been. I am pausing because I am not sure what the procedure was, but she will have been informed of that, yes.

Did you inform her?

I do not remember informing her; it was three years ago. It might well have been me, or it might well have been the Lord Advocate. A number of people could have been involved.

Could you, perhaps, check and come back to the committee?

I can check and see whether we can find out.

That would be very helpful.

The Scottish Government referred the complaints. Do you know what date they referred to?

I see that you do not know that.

Not off the top of my head.

Do you know who in Police Scotland was in charge of the investigation?

I cannot tell you that. I do not know.

As head of the civil service, who would you expect to contact about something so serious?

We would not get into that level of detail with Police Scotland. That is an operational matter, and it is not something that I would expect to be involved in. Our role and responsibility would be to pass any information that we had to the Crown Office and Procurator Fiscal Service, at that point—and we did.

So, nothing would go directly to the police.

I cannot tell you at the moment about the detail of what was and was not sent to the police. I do not have that detail.

Could you explain the process? I am struggling to understand. You have decided that a complaint will go to the police. What happens then? Does someone contact the police, or does it go straight to the procurator fiscal? I would have thought that there would have to be an investigation by the police and that, on the basis of that, the information would be passed to the Crown Office and Procurator Fiscal Service and the sufficiency of evidence would be considered.

I cannot give you chapter and verse on the procedure and who did that at the time, but I am happy to write to you about what information we have on which individual took which phone call and made which reference at which point.

To my mind, that clearly comes within the role of the investigation, and it is closely associated with that. If the committee is interested in that element, it might well be that we can include it in the information on the investigation that we will submit to the committee in due course.

That also comes within operational responsibility. If you have a responsibility to contact the police, there should be some indication of who would do that. Obviously I would not expect you or the individual concerned to lift up the phone and speak to the desk sergeant—

No, indeed.

It would be very helpful, in looking at operational responsibility and how the policy played out, if you could come back with that information.

We will do that.

I have a very small question. If you are not the line manager of James Hynd and Nicola Richards, who is?

There are directors general who report to me. James Hynd reports to a director, who reports to a director general, Nicky Richards reports to a director general, and both those directors general report to me.

I have a couple of wee quick questions that follow on from points that committee members have raised. I am interested in the point that the deputy convener raised. I thank you for the offer to send information, which will inform the next part of our inquiry.

At what point during an investigation would the Government take legal advice? Would it be when an alarm bell was rung that made you think, “Oh, gosh! This might be quite serious”? Would you take legal advice at that point, or would it be at the end of the investigation—perhaps after confirmation that a claimant wished to go further?

In respect of internal legal advice, we would keep in touch with our legal colleagues quite regularly, anyway, through a procedure of that kind. I am sure that human resources colleagues would do so, too—not frequently, but regularly, as the process continued—to ensure that they were keeping within the lines and keeping to the heart of the procedure legally.

On an unrelated point, I am thinking about the many iterations of the policy as it went through the normal procedure. Regarding the process by which it was decided how complaints about former ministers would be dealt with by whomever was the current First Minister, can you take me through how that decision was made and what changes were made to what ended up in the final document?

The iterations of the document, in the final procedure, continued to refine and define what was going into the final document. From the very outset, as a result of the analysis and the work that had been undertaken on the fairness at work policy, and some of the gaps that had been identified as part of that process, the issue of former ministers was already inherent in the work that we had undertaken and was therefore quickly represented in the early iterations of the documents. The iterative process would have continued with James Hynd—as, I am sure, he shared with the committee—legal colleagues and HR colleagues, on the practicalities of ensuring that a procedure was applicable.

We are very aware that a procedure that might look fine on paper also needs to take into account issues such as when the ministerial code comes in, when people should be alerted and so on. The iterative process would have been live throughout all those versions of the document, but the issue of past ministers was already included at the very early stage.

I think that the committee has received copies of the iterative document. I am sure that we can give you further information about why changes were made at points, if you are interested in a particular version of when things were introduced, but I have outlined the broad-brush approach to development of the procedure.

I am interested in a specific aspect. I do not have the document in front of me, but I remember that the final version—I think—discusses how to deal with a situation in which the former minister is the same party as the current First Minister. I am interested in the development of that particular aspect of the policy and where it ended up.

I will need to come back to you on that. I was not involved, but I am sure that James Hynd or Nicola Richards will be able to give further information on that.

Thank you.

I thank the permanent secretary for her evidence and for coming back to the committee. I note that we will get something in writing from you on quite a few things that have come out today. We will now have a comfort break, which will also allow the changeover of witnesses.

11:10 Meeting suspended.  

11:17 On resuming—