Alex Salmond could be forced to WITHDRAW his bombshell ‘evidence’

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The Scottish Parliament has redacted the most damning parts of Alex Salmond’s bombshell evidence against Nicola Sturgeon – and he is now threatening to cancel his blockbuster testimony tomorrow to an inquiry into the handling of sexual assault allegations against him.

Prosecutors had asked for portions of Mr Salmond’s testimony to be redacted because of unspecified ‘grave concerns’, and this afternoon paragraphs from his statement including the accusation Ms Sturgeon lied, were removed from the written statement.

Ms Sturgeon’s government was immediately accused of a cover-up. Mr Salmond has already accused the Crown Office of withholding evidence which shows her allies plotted to have him charged with sexual assault and ultimately jailed.

He was eventually cleared and now the internal SNP row threatens to tear the party apart ten weeks before the Holyrood elections – which some fear could lead to a second independence referendum if the nationalists dominate. 

His allies allege sexual assault allegations against him – of which he was cleared – were part of a plot designed to prevent his political comeback and cooked up by Ms Sturgeon’s allies in a climate of #MeToo allegations across the world. 

The Scottish Parliament inquiry is considering the handling of sexual assault complaints against Salmond after his acquittal and today deleted portions of his written testimony after a request from prosecutors at the Crown Office.  

But media attention in Scotland today was focused on Ms Sturgeon’s roadmap out of lockdown, and opposition figures were quick to point out the timing had all the hallmarks of burying bad news.

Publisher of the Spectator Andrew Neil said: ‘The important point to grasp here is that if the Crown Office succeeds in un-publishing Salmond’s submission then the Inquiry cannot consider it when it comes to finalising its conclusions. Devious.’

Before the latest redaction, Scottish Conservative leader Douglas Ross told MailOnline: ‘The SNP have used every trick in the book to subvert the Scottish Parliament and protect Nicola Sturgeon.’

His testimony was made public two weeks ago after a legal battle by the Spectator magazine that argued the risk of identifying his accusers should not stop the claims about the Scottish government being made public.

The now redacted claims have been published on its website and across the media after the ruling by the High Court in Edinburgh.

Mr Salmond’s legal team questioned the motives behind the censorship the testimony which accused to Sturgeon of lying to the Scottish Parliament about when she knew of the probe into Mr Salmond.

He said he could cancel what was due to be a blockbuster committee appearance tomorrow in which he was due to accuse Ms Sturgeon’s husband and other top aides of a ‘malicious’ plot to send him to prison over sexual assault.

Despite the allegations, Ms Sturgeon insists the former first minister has ‘not a shred of evidence’ against her.

Scroll down to read the censored evidence

Before: Mr Salmond's testimony made claims against Ms Sturgeon and her office which have now been redacted

Before: Mr Salmond’s testimony made claims against Ms Sturgeon and her office which have now been redacted

After: The Scottish Parliament redacted the most damning parts of Mr Salmond's bombshell evidence against Ms Sturgeon

After: The Scottish Parliament redacted the most damning parts of Mr Salmond’s bombshell evidence against Ms Sturgeon

Mr Salmond accuses Scottish prosecutors of withholding evidence proving Ms Sturgeon's aides conspired with civil servants to press ahead with taking the allegations against Mr Salmond to court despite legal advice he would be cleared

Mr Salmond accuses Scottish prosecutors of withholding evidence proving Ms Sturgeon’s aides conspired with civil servants to press ahead with taking the allegations against Mr Salmond to court despite legal advice he would be cleared

Media attention in Scotland today (pictured, the first minister) was focused on Ms Sturgeon’s roadmap out of lockdown as she announced the plans this afternoon

Mr Salmond’s lawyer says the decision to censor his evidence is of ‘significant surprise and concern’ and said the Crown Office’s intervention ‘only serves to reinforce’ his fears about prosecutors. 

Two pieces of Mr Salmond’s evidence were published on the Scottish government website yesterday.

The first, previously published by the Spectator, had the accusations of Ms Sturgeon lying to Parliament about when she first learned of an investigation into accusations of sexual assault.

Allegations, discussions, denials and a ‘forgotten’ key meeting between Sturgeon and Salmond

November 2017: Allegations regarding Alex Salmond’s behaviour are raised with the SNP by Sky News.

Nicola Sturgeon said she spoke to him about this – and he ‘denied it’. No further action was taken.

March 29, 2018: Ms Sturgeon meets Geoff Aberdein – Mr Salmon’s chief of staff – in her Scottish parliament office where she has admitted they discussed the possibility of a meeting with Mr Salmond. Ms Sturgeon – after initially forgetting about this meeting – says there was ‘the suggestion that the matter might relate to allegations of a sexual nature’.

April 2, 2018: Ms Sturgeon and Mr Salmond meet at the First Minister’s home. According to Ms Sturgeon, this is the first time she heard of the complaints made against him. Despite this, she has insisted that the matters discussed were party business.

April 23, 2018: Ms Sturgeon and Mr Salmond hold a ‘substantive’ phone discussion. During this call, Ms Sturgeon claims that Mr Salmond asked whether she would speak to Leslie Evans about ‘mediation’ with the complainants. A special adviser was in the room at the time.

June 6, 2018: Ms Sturgeon writes to Mrs Evans to inform her that she has held discussions with Mr Salmond.

June 7, 2018: Ms Sturgeon again meets Mr Salmond, this time in Aberdeen ahead of the SNP party conference.

July 14, 2018: Ms Sturgeon meets Mr Salmond at her home near Glasgow.

July 18, 2018: Ms Sturgeon and Mr Salmond speak again on the phone. Ms Sturgeon said that ‘by this time’ she was ‘anxious – as party leader and from the perspective of preparing my party for any potential public issue – to know whether his handling of the matter meant it was likely to become public in the near future.’

This is the last time Ms Sturgeon and Mr Salmond speak. During this time they also exchange a number of WhatsApp messages in which they discuss the affair – including Mr Salmond’s decision to seek a judicial review over the government’s probe into the two complaints. 

January 2019: Mr Salmond wins sexual harassment inquiry case against Scottish government and is awarded £500,000 in legal fees.  

March 23, 2020: Alex Salmond is cleared of all sexual assault charges and his supporters demanded a full inquiry into the Scottish Government’s handling of the scandal.

January 24, 2021: Speaking on the Andrew Marr show, Ms Sturgeon denies misleading the Scottish Parliament after ‘forgetting’ to tell MSPs about her meeting with Mr Salmond’s aide on March 29, 2018.

February 8, 2021: Peter Murrell, the SNP’s chief executive and the First Leader’s husband, is accused of a ‘dismal and shifty’ performance as he gave evidence to the inquiry on Zoom.

February 16, 2021: Mooted date for Ms Sturgeon to appear before the inquiry. 

The second previously unreleased statement named Ms Sturgeon’s husband and four other aides and civil servants and accused them of being complicit in a ‘malicious’ effort to bring sexual harassment and attempted rape charges against him of which he was cleared.

The most serious risk to Ms Sturgeon in the unfolding drama is Mr Salmond’s claim in a separate statement she lied to the Scottish Parliament about when she knew about the investigation against him. If proven, she could be forced to resign.

In that statement Mr Salmond says his chief of staff met her on March 29, 2018, to discuss the probe – she later told the Scottish Parliament that she first learned of the probe on April 2.

Mr Salmond says this is a breach of the Ministerial Code.

Also among his evidence is an email sent by Ms Sturgeon’s office to Scotland’s top civil servant Leslie Evans saying Scottish government sexual harassment policy should be expanded to include former ministers.

The message, sent on November 17, 2017, came 11 days after the first claims of sexual assault against Mr Salmond.

He says the ‘radical expansion’ of the policy ‘must have been inserted to allow the complaint against me to be prosecuted’.

Mr Salmond’s other explosive statement names five of Ms Sturgeon’s top aides and civil servants accusing them of colluding against him in a ‘malicious’ plot to have him charged with 13 counts of sexual assault.

He called for some of them to resign and claims their conduct could amount to a ‘conspiracy’ at the highest levels in Scottish government.

He claimed in the submission the ‘inescapable conclusion’ was that there was a ‘malicious and concerted’ attempt to see him removed from public life in Scotland.

Ms Sturgeon’s husband and SNP chief executive Peter Murrell, Principal policy adviser Leslie Evans, chief of staff Liz Lloyd, compliance officer Ian McCann and chief operating officer Sue Ruddick were all complicit in efforts to damage his reputation, Mr Salmond says.

In his latest statement, Mr Salmond alleges that while probing sexual assault claims against him, SNP officials were also drafting the Fairness at Work Policy 2010.

He claims Ms Lloyd drafted an amendment in November 2017 to tweak a policy to include ‘former Ministers, including from previous administrations regardless of Party’.

He makes the link between this email and the claims made against him by the female complainants – meaning he could be prosecuted.

He says there was also a political intervention when Ms Sturgeon and the Permanent Secretary agreed before December 2017 that she should be distanced from the policy and only told when it was done.

Mr Salmond claims: ‘When the Permanent Secretary agreed with the First Minister that she should take over as key decision maker in terms of this new policy she was already aware of the developing complaints against me.

‘Therefore she put herself at the centre of a policy in the full knowledge that I would likely be the first (and perhaps only given the subsequent declaration of illegality) subject of its implementation. Doing so from a position of already being tainted by bias is an extraordinary decision.’

He also says the Scottish government was advised by external counsel in October 2018 that the ‘balance of probability’ was that ‘they were heading for likely defeat’ in its case against him.

He said: ‘And yet, despite that advice and the cost of hundreds of thousands of pounds of avoidable legal fees, the Scottish Government pressed on with a case they expected to lose.’

He added: ‘However, underlying all of this and perhaps the most serious issue of all is the complete breakdown of the necessary barriers which should exist between Government, political party and indeed the prosecution authorities in any country which abides by the rule of law.’

Mr Salmond faced 13 charges including one of attempted rape, one of intent to rape, nine charges of sexual assault and two of indecent assault.

The ex-SNP leader was cleared of all charges by a jury following an 11-day trial at the High Court in Edinburgh.

The jury returned not guilty verdicts on 12 charges and returned a not proven verdict on a charge of sexual assault with intent to rape. 

SNP Chief Executive, Peter Murrell arrives to give evidence to a Scottish Parliament committee at Holyrood in December

SNP Chief Executive, Peter Murrell arrives to give evidence to a Scottish Parliament committee at Holyrood in December

Liz Lloyd, Nicola Sturgeon's Chief of Staff, at an SNP event at which Scotland's First Minister Nicola Sturgeon set out the next steps in the SNP's campaign for Scottish independence, on January 31, 2020

Leslie Evans, Permanent Secretary to the Scottish Government, is pictured as she gives evidence at Holyrood to a Scottish Parliament committee examining the handling of harassment allegations against former first minister Alex Salmond

Liz Lloyd, Nicola Sturgeon’s Chief of Staff, at an SNP event at which Scotland’s First Minister Nicola Sturgeon set out the next steps in the SNP’s campaign for Scottish independence, on January 31, 2020

Sue Ruddick (pictured) was also complicit in efforts to damage his reputation, Mr Salmond says

Sue Ruddick (pictured) was also complicit in efforts to damage his reputation, Mr Salmond says

Nicola Sturgeon’s aides who Alex Salmond accuses of being complicit in efforts to damage his reputation

Nicola Sturgeon’s husband and SNP Chief Executive Peter Murrell

Peter Murrell has been chief executive of the SNP since 1999.

The 56-year-old was educated at Craigmount High School and Glasgow University before moving into politics.

He later worked in the Banff and Buchan constituency office of former First Minister Alex Salmond, who he now faces accusations from.

He met Ms Sturgeon in 1988 at the constituency office and they became a couple in 2003.

The pair got married in July 2010 at Òran Mór Glasgow.

Chief of Staff Liz Lloyd

Nicola Sturgeon’s Chief of Staff Liz Lloyd is no stranger to controversy.

Only last month the special adviser was blasted for tweeting criticism of Prime Minister Boris Johnson.

As a civil service she is supposed to remain apolitical.

The rules say she ‘must not take public part in political controversy’, including on ‘social media’.

Now she is also wrapped up in accusations she was part of a ‘witch hunt’ to destroy Alex Salmond.

Ms Lloyd has been at the top of Scottish politics for nearly a decade – being a Spad for nine years and chief of staff for six years.

Before that she was head of the SNP’s media operations for four years and an adviser to MSP Jim Mathers for three years earlier.

Edinburgh University educated Lloyd studied an MA in American studies and an MSc in European and comparative public policy before entering politics.

Her LinkedIn calls for: ‘a strong, successful and independent Scotland.’

Permanent Secretary Leslie Evans

The head of Scotland’s civil service could be sacked from the role as MSPs prepare to ‘throw her under the bus’.

Permanent Secretary Leslie Evans is expected to be slammed in a report on Holyrood’s handling of the Alex Salmond affair.

There are reportedly plans underway to get Ms Evans out of office earlier than her scheduled leave next spring.

A source told The Sunday Times MSPs on the special committee are ‘preparing to throw her under a bus’.

Ms Evans is a 62-year-old civil servant from Northern Ireland who moved to Sheffield as a child before studying music at Liverpool University.

She started living in Scotland in 1985 and joined the government in 2000 after 20 years working in local authorities.

She was the first woman to land the top civil service job – from May 2015 – and earns around £175,000 a year.

Chief Operating Officer Sue Ruddick 

The mother of three is the chief operating officer for the Scottish National Party.

She worked in London as chief of staff for the SNP Westminster Group before heading up to Scotland.

Ms Ruddick had before that been a parliamentary press and research assistant after being a part time swimming teacher.

The Aberdeen University educated politico has a master’s degree in history and also took courses in German, Spanish, sociology, psychology and international relations.

Her LinkedIn profile says: ‘A pro-active and talented Communications Professional with extensive experience in corporate image development and business administration.

‘Proven track record of successful design, implementation and management of innovative communication strategies leading to significant increases in efficiency and gains for the company.’

Compliance Officer Ian McCann

Ian McCann is the point of contact at SNP Headquarters in Edinburgh, according to the party’s website.

His Twitter bio says: ‘Two kids, two chins, eclectic taste in film and music. I mostly avoid discussion of politics, but if I do, I reserve the right to joke.’

He often retweets First Minister Nicola Sturgeon and is followed by SNP Westminster leader Ian Blackford.    

In his submission to the inquiry, Mr Salmond said had it not been for the jury system, a campaign to remove him from public life might have ‘succeeded’.

In a different submission, Ms Lloyd ardently rejected being part of a conspiracy and said this was ‘not substantiated by any evidence’.

She also denied leaking details of a Scottish Government inquiry into the allegations to the Daily Record newspaper.

According to Mr Salmond, the ‘most obvious and compelling evidence of such conduct’ is contained in materials the Crown Office ‘refuses to release’.

He said: ‘That decision is disgraceful.’

Mr Salmond has called for evidence he obtained ahead of his criminal trial – but was not used in court – to be released by prosecutors, but they have refused.

He said such a move ‘makes it impossible for the Committee to complete its task; and that the ‘only beneficiaries of that decision to withhold evidence are those involved in conduct to damage (and indeed imprison) me’.

Mr Salmond also accuses Mr Murrell of deploying ‘his senior staff to recruit and persuade staff and ex-staff members to submit police complaints’.

He said: ‘This activity was being co-ordinated with special advisers and was occurring after the police investigation had started and after I ceased to be a member of the SNP.’

Mr Murrell has previously denied there was a conspiracy against Mr Salmond.

Mr Salmond has also used his final submission before he is expected to appear at Holyrood to demand resignations over the affair, hitting out at the ‘real cost’ to the Scottish people which he believes to be ‘many millions’ of pounds.

He said: ‘No one in this process has uttered the simple words necessary on occasions to renew and refresh democratic institutions – ‘I resign’.’

But last night Miss Sturgeon claimed there was ‘not a shred of evidence’ of a conspiracy.

She told STV News: ‘He has made claims, or he appears to be making claims or suggestions there was some kind of conspiracy against him or concerted campaign against him.

‘There is not a shred of evidence about that, so this is the opportunity for him to replace insinuation and assertion with evidence. I don’t believe he can because I know what he is saying is not true.

‘If he can’t provide that evidence he should stop making these claims about people because they’re not fair.’

She refutes Mr Salmond’s claims that she did breach the ministerial code. She added: ‘The Scottish Government, of course, made a mistake in this. But this week it’s an opportunity for Alex Salmond – I hope he will come to the committee on Wednesday.

An SNP spokesman said: ‘This is just more assertion without a shred of credible evidence.’

Scottish Conservative leader Douglas Ross told MailOnline: ‘The SNP have used every trick in the book to subvert the Scottish Parliament and protect Nicola Sturgeon.

‘Preserving the anonymity of the female complainers is paramount.

‘However, Parliament must have the power to hold the SNP government to account for its actions which failed these women and cost taxpayers at least £1million.

‘There are serious questions about the dual role of the Lord Advocate as a Scottish Government minister and head of what is supposed to be an independent and impartial prosecution service.

‘The people of Scotland deserve so much better than the SNP sleaze of Sturgeon and Salmond.’

Scottish Labour interim leader Jackie Baillie added: ‘The committee must be able to see all relevant evidence if we are ever to get to the truth of the matter. However, it has been reported that the Crown Office wrote to the Scottish Parliament threatening the Parliament with contempt of court action following the publication of Alex Salmond’s evidence.

‘Given that the Lord Advocate is in charge of the Crown Office and a member of the Government, he should be invited to come before Parliament and make an urgent statement, along with the Crown Agent David Harvie.

‘And – given the significant public interest – I have asked the Presiding Officer to publish the letter from the Crown Office to the Parliament, so that we can better understand the restrictions placed on the Corporate Body.

‘Too much time and money has been spent on this sordid tale. The committee must be able to get on with its work, unobstructed and without information being inappropriately withheld.’

Chairman of the Spectator Mr Neil tweeted: ‘Using lame and bogus jigsaw identification excuses, it’s almost as if the Crown Office was acting on behalf of Scot Gov to stop important/embarrassing information from reaching the public domain, where it belongs.’

He added: ‘The important point to grasp here is that if the Crown Office succeeds in un-publishing Salmond’s submission then the Inquiry cannot consider it when it comes to finalising its conclusions. Devious.’

Yesterday, Rape Crisis Scotland demanded the Scottish parliament should convene an ’emergency’ meeting to rethink the decision to publish Mr Salmond’s submission.

Chief executive Sandy Brindley warned it was ‘inexplicable’ Holyrood chiefs would ‘knowingly publish’ material which could risk identifying someone who had complained about Mr Salmond.

Last night a spokesman for Mr Salmond said: ‘We have now reached agreement with the parliamentary clerks on the publication of Mr Salmond’s evidence.

‘This clears the way for Mr Salmond to attend an oral hearing on Wednesday.’ Ms Sturgeon is expected to give evidence at the inquiry next week.

Alex Salmond’s submission to the Harassment Complaints Committee last night

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Submission Alex Salmond

Introduction

This is my fourth submission to the Parliamentary Inquiry. It should be read in addition to, and in conjunction with, the three other previous submissions. Those prior submissions relate to the application of the procedure (phase 2), the Judicial Review (phase 3) and the Ministerial Code (phase 4).

This final document accordingly includes an introduction and overview of matters

linking each of the four individual submissions

It thereafter includes submissions on

1. phase 1 of the Inquiry.

2. the question of ‘conspiracy’

3. Crown Office

Documentary evidence exists to support all of the factual statements made in this

submission. I have sought to provide that to the Committee where it is within my

power to do so. Despite repeated requests, however, Crown Office has not provided

the Committee with the critical evidence which was unable to be led in the High

Court. Perhaps even more concerning is the direction from Crown Office that I face

the prospect of criminal prosecution for even referring to the existence of such

evidence or specifying (even in broad terms) what that evidence is. One of their letters

even suggested that the Committee’s use of such documentation might also constitute

a criminal offence

My hope and belief, expressed outside the High Court in Edinburgh after my

acquittal, was that documents which were not put before the jury and the public would

be published in the course of this Inquiry. To date, and despite the centrality of those

documents to the remit of this Committee and the overwhelming public interest in

their publication, Crown Office continue to veto any such publication under threat of

prosecution.

Despite that deplorable prohibition, I can confirm that all of the material factual

statements made in this submission are supported by documentary evidence. Where I

am legally allowed to direct the Committee to such documents, I will be happy to do

so.

Overview

The Committee has achieved progress in the volume of documentation supplied.

However it has been fundamentally obstructed in three key areas.

First on the legal advice which the Government received from external counsel in the

Judicial Review. In normal circumstances the extraordinary discovery by this

Committee that both Senior and Junior Counsel to the Government threatened

resignation because the case they were being asked to argue was unstateable would

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have been headline news. However, despite two parliamentary votes, the full advice

from Counsel hasn’t been provided to the Committee. It is extraordinary that the

Lord Advocate, who could sanction such advice being published, has refused to do so.

The legal provision for him to publish in the public interest is clear. Inexplicably, the

Lord Advocate has been able to simply refuse that request and to get away with doing

so in the face of the will of the Committee and of Parliament. Despite that, it appears

from what has emerged that by October 2018 external counsel advised the

Government that, on the balance of probability, they were heading for likely defeat.

And yet, despite that advice and the cost of hundreds of thousands of pounds of

avoidable legal fees, the Scottish Government pressed on with a case they expected to

lose. This submission explains why.

Second the restriction arises as a result of the failure of the Government to provide

documents from when the Judicial Review started in August 2018 until the Scottish

Government finally conceded in January 2019. There were 17 meetings with external

Counsel, daily meetings on progress of defending the Judicial Review (according to

Paul Cackette, acting Solicitor to the Scottish Government during the case) and thrice

weekly meetings according to Ms Judith Mackinnon, the Investigating Officer.

However, the Committee has yet to publish (or to my knowledge see) a single

relevant minute, email, text message or ‘One Note’ from that entire period relating to

those meetings despite being assured that such documents would be provided. Of

particular interest to the Committee would be the extent to which various parties were

informed of the progress of the case and in particular whether the Lord Advocate’s

expressed views on ‘sisting’ (pausing) the Judicial Review pending the criminal case

were discussed, how widely and with whom.

Thirdly, the crown response to the section 23 request has hindered rather than assisted

the Committee. The information provided was neither sought nor publishable by the

Committee. Those in Crown Office providing that information must have been well

aware of that. However, text messages which could be properly considered and

published and which have been part of the Committee’s questioning and would bear

directly on the veracity of evidence given under oath to this Committee have been

withheld. The blocking of the Committee in this matter and others is nothing

whatsoever to do with protecting the anonymity of complainants, which I support and

have upheld at every stage in this process. Rather, it is a matter of the shielding of

some of the most powerful people in the country who are acutely aware of how

exposed they would become.

The Parliamentary Committee has already heard evidence of activities by civil

servants, special advisers, Ministers and SNP officials which taken individually could

be put down to incompetence, albeit on an epic scale. However taken together, and

over such a prolonged period, it becomes impossible to explain such conduct as

inadvertent co-incidence. The inescapable conclusion is of a malicious and concerted

attempt to damage my reputation and remove me from public life in Scotland. It is an

attempt which would, in fact, have succeeded but for the protection of the court and

jury system and in particular the Court of Session and the High Court of Justiciary.

However, underlying all of this and perhaps the most serious issue of all is the

complete breakdown of the necessary barriers which should exist between

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Government, political party and indeed the prosecution authorities in any country

which abides by the rule of law.

In each of the written submissions under Phases 1-4 of the Inquiry remit I have sought

to explore those themes, and identify evidence to assist the Committee in doing its job

holding the Executive to account.

The success, or failure, of this Committee in doing so will have a very significant

bearing on public confidence in the ability of Parliament more generally to expose

failures across Government. The ramifications of a Committee unable to complete its

work due to delay, obstruction and refusal on the part of those under investigation are

both profound and chilling.

Phase 1

In relation to Phase 1, I am asked for evidence regarding the development of the

policy.

I would make the following general comments, on which I will be very happy to

expand in oral evidence.

1) Fairness at Work

The Committee has heard evidence on the origins of the Fairness at Work Policy 2010

(‘FaW’). As First Minister I approved the policy and, in contrast to any other

witnesses before this Inquiry, I was actually involved in its development.

Implementation of the policy was achieved with the co-operation of the trade unions

and I was pleased to be the First Minister who sanctioned its adoption.

As Appendix 1 from a Management Board meeting of 23 November 2009 makes

clear, it was not evolved as a result of specific complaints about Ministers at the time

but reflected long standing trade union grievances about Ministerial Offices stretching

back to the days of the Scottish Office. FaW was the first workplace policy to include

Ministers and I approved it on the basis that it was made compatible with the statute

based Ministerial Code in which the First Minister is the final decision maker on the

fate of a Minister facing a complaint. This was done by placing the Deputy First

Minister in the deliberative part of the policy. The result was that only after a

recommendation had been made would the First Minister finally decide. This was

aimed at avoiding him or her judging twice on the same case. The policy was

negotiated over a period of 18 months, was carefully constructed, balanced and

lawful. It was well received by all concerned.

In the event there were no formal complaints made against any Minister under the

policy and thus it was never invoked. Specifically and to my knowledge the present

First Minister was never informed about any complaints against me because there

were none. Similarly I was never informed about any complaints against her or any

other Minister under the terms of this policy because there were none.

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In the evidence of Ms Richards (25th August 2020) she revealed that there have been

two complaints under FaW against current Ministers since 2017. Presumably these

will have been dealt with under the FaW provisions including the involvement of

John Swinney as Deputy First Minister.

This Committee is charged with finding out what went wrong. It should also look at

what can be done now to put matters right.

Fairness at Work, of which the Permanent Secretary admitted in her evidence (in

response to Ms Mitchell on 18th August 2020) to ‘not being an expert’, is in reality a

carefully considered policy which is still in operation for the civil service and for

serving Ministers with regard to bullying complaints. The Permanent Secretary’s

extraordinary claim in the same evidence session that it does not cover harassment

can only be a result of her admitted lack of familiarity with the policy. In reality it

covers this explicitly in paragraph 3.2.1. As recently as December 2017 FaW was

hailed by the unions in a letter to the Permanent Secretary as an achievement ‘of

which we all should rightly be proud and something that sets up as being more

assiduous than our counterparts down south’ ( FDA Convener)

FaW is legal, not illegal. It is procedurally fair, not unfair. It was carefully considered,

not rushed. It achieved the central longstanding workforce ambition of having

Ministers on the same footing as civil service managers. No doubt it can be updated

and improved but the current position of limbo is ridiculous.

The concept of a civil service investigation into people over which they have no

legitimate jurisdiction is nonsensical and the idea of passing the results to the relevant

political party for action is self- evidently ludicrous. If legal action wasn’t taken

against the government it would inevitably follow against any political party which

attempted to proceed with any form of disciplinary action on such an unlawful basis.

Fairness At Work should be reinstated at the earliest opportunity pending the Dunlop

review.

2) The Development of the 2017 Procedure

The Committee has already clearly established that there was no discussion or

information presented to either Parliament or Cabinet on the 31st October 2017 of

extending work place policies to former Ministers. Nor was there any suggestion that

this should be done in the Head of the Civil Service’s letter of 3rd November 2017.

And of course it was not carried forward in any other administration in the U.K. and

was opposed by of the UK Cabinet Office when they were briefly consulted

on the proposal later in November 2017. As she wryly asked the Scottish Government

at that time, was there also to be such a retrospective policy for former civil servants?

Nor was the new policy signalled in any of the internal communications with staff

until February 2018.

The claim of the Government is that it came about independently from James Hynd

who was tasked with drafting the policy and delivered the first draft applying ONLY

[Redacted] [Redacted]

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to Former Ministers on November 8th 2017. However the previous day Ms

McKinnon had circulated a ‘routemap’ of a policy which also suggested applying to

former Ministers. Mr Hynd reacted to that on 8th November saying that ‘neither of

the pathways involving Ministers look right’.

It is stretching credibility to believe that this radical departure from all previous policy

in the Scottish (or any other) administration was simultaneously and independently

dreamed up by two separate civil servants. This is despite Mr Hynd telling the

Committee on August 25th 2020 that he started with ‘a blank sheet of paper’. In one

of the many letters to the Committee from civil servants correcting their evidence, Ms

Mackinnon conceded on October 31 2020 that these things were ‘happening in

parallel’. Indeed they were and there was a common factor. That common factor is

the Permanent Secretary Leslie Evans whose office was deeply involved in directing

the work of both James Hynd on his policy and Ms Mackinnon on her route map.

In addition we know now that Ms Evans went to see the First Minister on November

6th about her information that Sky News were about to run a story concerning

Edinburgh airport. I am now in the position to know exactly what this issue was about

and the Permanent Secretary’s fears that it was about to break as a major story were

groundless. However in the febrile atmosphere of November 2017 a sense of

proportion and due process was in short supply.

In reality I had spent 30 years in public life in Scotland and for most of that time was

certainly the most investigated person in the country by the press. It is inherently

unlikely that misconduct had remained unreported and undiscovered over such a

period. Mr Murrell confirmed in his evidence to this Committee that he had never

heard of any such complaint against me in my entire time in politics and the First

Minister confirmed this on BBC television to Andrew Marr on 7

th October 2018.

Regardless, the chronology revealed by the evidence tells us that the Permanent

Secretary briefed the First Minister on 6

th November 2017 on the proposed story

involving Edinburgh Airport. Further, the Permanent Secretary was contacted by

Barbara Allison about a separate concern from a former civil servant on November 8th

2017. Having briefed the First Minister on the first of these it might be considered

unlikely that she did not brief her on the second. In that context, the notion that a

policy instructed immediately afterwards which specifically, and uniquely, extended

to cover allegations against former ministers is co-incidental and unrelated is hardly

sustainable.

If further confirmation of the basis for the policy were needed, the Committee has

evidence of two directly political interventions at this stage.

First, the Chief of Staff to the First Minister drafted a specific amendment on 17

November 2017 which amended the commissioning letter instructing the policy

proposing the wording ‘but also former Ministers, including from previous

administrations regardless of Party’. This was in an email to Leslie Evans’ Private

Secretary. It is impossible to accept that such a radical expansion of the jurisdiction of

the Scottish Government to cover not just former ministers of the current

administration but also those of previous administrations (many of whom are no

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longer even in elected office never mind in Government) was not specifically inserted

to allow the complaint against me to be prosecuted.

The second political intervention was when the First Minister and the Permanent

Secretary reached agreement, perhaps at their meeting on November 29th but certainly

before December 5th 2017, that the policy should be recast in order that FM should be

taken out of the policy proper and only consulted or even informed after the process

was complete. This was a fundamental change in the policy.

The timing of this is significant. When the Permanent Secretary agreed with the First

Minister that she should take over as key decision maker in terms of this new policy

she was already aware of the developing complaints against me. Therefore she put

herself at the centre of a policy in the full knowledge that I would likely be the first

(and perhaps only given the subsequent declaration of illegality) subject of its

implementation. Doing so from a position of already being tainted by bias is an

extraordinary decision.

Despite her protestations to the contrary the Permanent Secretary was chiefly

responsible for the pursuit of an unlawful policy which has cost the Scottish people

millions of pounds.

In her letter of 21st June 2018 to Levy and McRae she describes the policy as

‘established by me’. She claimed ownership of it then, but not now. When asked at

the Committee she said ‘there seems to have come into being a tradition of calling it

my procedure. It is not; it is a Scottish Government procedure and one that has been

agreed by Cabinet..’ In fact, this procedure was never even seen by Cabinet or

Parliament.

It was established by Ms Evans.

In her presentations before the Committee, the Permanent Secretary still seems

oblivious to the scale of the disaster she has inflicted on all concerned or the enormity

of the misjudgements she has made.

The view that she should have resigned on 8th January 2019, the day that Lord

Pentland’s interlocutor judged the policy Ms Evans established and the actions taken

as ‘unlawful’, ‘unfair’ and ‘tainted by apparent bias’ is widely shared not least by

Cabinet Ministers. The damage she has done to the reputation of the civil service is

very significant. In my view, any person conscious of the responsibility of holding

high office would have resigned long ago. Instead Ms Evans’ contract was extended.

3) The role of the Investigating Officer

As the Committee has already discovered the ‘prior contact’ of the Investigating

Officer with the complainants was not ‘welfare’, as was indicated to Parliament, but

was specifically contact about emerging complaints, weeks before the policy under

which they were to be pursued was even approved.

The Committee has already established that complainants were informed that Ms

McKinnon would be appointed the Investigating Officer in early December 2017,

7

long before complaints were actually made. The Committee has further established

that the draft policy was even shared with one complainant for her comment and that

Ms Mackinnon was in contact with both complainants to discuss the basis on which

future complaints might be submitted under the policy.

Documentation which finally emerged at the Commission and Diligence ordered by

the Court of Session at the end of December 2018 demonstrated that the Government

pleadings were false in terms of the nature of this contact. This has been admitted by

the Lord Advocate in his evidence to the Inquiry on 8

th September 2020. Again, such

conduct appears to carry no sanction. These are serious matters, especially so for a

Government making statements to a public court.

For example the ‘OneNote’ from Judith McKinnon dated January 9th 2018, and

revealed as a result of the Commission process, speaks to ‘changing’ the position of a

reluctant complainant, the sharing of complaints, and of it ‘being better to get the

policy finalised and approved before formal complaint comes in’ and of not telling

the FFM until we are ‘ready’. It is this information that was completely at odds with

the government pleadings in the Judicial Review and indeed stands in stark contrast

with the oral evidence presented to the Committee.

These practices are not just wrong, they are an affront to the principles which

underpin workplace and human resources policy across the country. The Committee

has made reference to ACAS guidance at various stages of the Inquiry. How such

conduct could even be contemplated by an individual employed at significant public

expense and with a string of HR qualifications remains to be explained.

Watching the evidence before the Committee, it is apparent to me that even after

having conduct declared illegal in the Court of Session, those at fault in the civil

service still cannot accept the fact that they did something seriously wrong. In reality

behaving unlawfully is as serious as it gets for any public servant.

The repeated claim that the terminology somehow changed for the first to the final

drafts of the procedure thus causing confusion for those implementing the policy is

not just irrelevant (since it is only the final version that matters) it is also untrue.

In fact one of the very few unchanged provisions in the policy as it went through

numerous drafts and redrafts between November 8th to the final iteration on

December 20 2017 was that the Senior Officer/ Investigating Officer should have ‘no

prior involvement’.

Nor is it credible that the claim that the need for impartiality of an investigating

officer or equivalent was misunderstood. On the contrary, both James Hynd (10th

November 2017) offering 3 names at ‘arms length’ and Judith McKinnon (7th

November 2017) seeking to engage an ‘independent party to investigate’ recognised

this at an early stage.

Whether that person came from the broader civil service or outside it is secondary.

Perceived freedom from bias is an easily understood concept which is well

established in common law and in workplace policy. The appointment of Judith

McKinnon in this light was always wrong and is incomprehensible particularly in the

8

face of the fact that she has confirmed before this Committee that the nature of her

prior contact with the complainants was well known and indeed sanctioned among her

colleagues and line managers.

When the fact of it was discovered by the Government’s external Counsel (and even

after the duty of candour was explained to government lawyers by them on November

2nd and then by the court on November 6

th

, both 2018) the attempt was still made in

pleadings to present it as ‘welfare’ contact.

The documents which demonstrated this to be false had to be extracted from the

Government by a Commission and Diligence procedure under the authority of the

court as granted by Lord Pentland. The documents then produced under that

procedure emerged despite the Government being willing to certify to the Court that

these documents simply did not exist. That conduct is outrageous for a Government.

At the Commission itself, Senior Counsel for the Government (himself blameless for

the debacle) felt compelled to apologise to the court repeatedly as new batches of

documents emerged.

It is highly probable that had this documentation not been concealed from the court

(and from the Governments own counsel) the falsity of the Government’s pleadings

would have been avoided. The fact that even after the Government case collapsed,

misinformation then appeared in both a press release from the Permanent Secretary

and the First Minister’s statement to Parliament of 8th January 2019 speaks to an

organisation unable and unwilling to admit the truth even after a catastrophic defeat,

the terms of which they had conceded to the Court of Session.

The interests of the complainants

I also want to make a submission about the claims by the Scottish Government to

have promoted the interests of the women who raised complaints. That is, on the

evidence before the Committee, clearly false.

The Permanent Secretary claimed to the Committee that the interests of the

complainants were paramount in the Government thinking. This is very far from the

case.

The complainants were brought into the process by conduct ‘bordering on

encouragement’ as it was submitted by my Senior Counsel to Lord Pentland in the

Judicial Review

The complainants were assured that they would be in control of the process and that

any police involvement would be their choice.

This assurance has been stipulated from the earliest origins of the policy (eg Nicola

Richards’ email to Permanent Secretary of 23 November 2017) and remained in place

until the Permanent Secretary countermanded it in her instruction to Ms Richards to

send her decision report to the Crown Agent in August 2018, a move taken against the

direct wishes of the complainants.

9

They were offered the option of making ‘anonymous complaints’ for which there is

no provision in the policy. However, when it came to actually protecting the

anonymity of the complainants through a court order in the Judicial Review in

October 2018 the Government was not even represented by Counsel in court. It was,

in fact, me who instructed Counsel to seek that anonymity on the part of the women

concerned.

The investigation was carried out against the advice of the police who pointed out that

the Scottish Government were not competent to conduct the investigation. This has

been made available to the Committee in the police evidence from the Chief

Constable.

The reports to the Crown Office (instead of the police) were made against the express

wishes of both complainants and in direct conflict with the terms of the policy at

paragraph 19.

The leak of the story to the Daily Record on August 23 2018 was made with no

consideration of the impact on the complainants, impact which the Permanent

Secretary described in her evidence as causing considerable distress to all

concerned. That, of course, was in itself in direct contravention of the confidentiality

of the process promised to the complainants, and also to me.

However, it had been the Permanent Secretary’s own intention, despite police advice

to the contrary, to issue a press statement confirming the fact of the complaints on

Thursday 23 August 2018.

This Committee’s remit is to examine the actions of those in authority. Accordingly

the conduct of the Permanent Secretary and the civil servants and special advisers

involved is important. To claim, as the Scottish Government has done, that the wishes

and welfare of those who had made complaints were central to the decision making is

demonstrably untrue.

The leak to the Daily Record

In my view, the circumstances of the leak of the details of the complaints to the Daily

Record on 23rd/24th August 2018 should be thoroughly examined. It is highly likely

that the leak came from within the Scottish Government and, in all likelihood, from

one of the Special Advisers to the First Minister. The background facts may assist

The Permanent Secretary instructed her staff to send her Decision Report to the

Crown Agent on or about August 21st 2018

The Crown Agent, according to the police informed them of the Government’s

intention to release a story of the fact of the complaints to the press and the Chief

Constable and another senior officer advised against it and refused to accept a copy of

the report. We know, therefore, that the desire of the Scottish Government to get these

matters into the public domain is fully supported by evidence.

Despite this police advice, two days later the Government informed my legal team

they intended to release a statement at 5pm on Thursday 23 August 2018. We advised

10

that we would interdict the statement pending our Judicial Review petition and the

statement was withdrawn. On the strength of that undertaking, we didn’t require to

seek interdict.

We were then informed at around 4pm that the Daily Record newspaper had phoned

the Scottish Government press office with knowledge of the story but had no

confirmation. At 8pm, the Record phoned and then emailed at 8.16pm claiming

confirmation had now been given and broke the story at 10pm. The second story they

printed on Saturday 23rd August 2018 contained specific details from the complaints

and demonstrates that they also had access to the Permanent Secretary’s decision

report or an extract from it.

This leak was (according to the ICO) prima facie criminal, deeply damaging to my

interests and those of the complainants and a direct contravention of the assurances of

confidentiality given to all. After I formally complained to the ICO, the conclusion of

the ICO reviewer assessing these facts was that she was ‘sympathetic to the thesis

that the leak came from a Government employee’. The only reason no further action

could be taken was because the specific individual could not be identified without

police investigation. I intend to return to that police complaint when this Committee

has concluded its review. I should say that I am confident that I know the identity of

those involved in the leak.

John Somers, The Principal Private Secretary to the First Minister confirmed that her

office had received a copy of the Permanent Secretary’s report in evidence on 1st

December 2020. However, that evidence was then corrected to say that it had not

been received. However, that is difficult to reconcile with the ICO review report

(paragraph 4.8) which list the PPS, and therefore The Private Office as one of the

stakeholders ‘who has access to the internal misconduct investigation report’.

It is unlikely that a leak to the Daily Record came from mainstream civil service. The

overwhelming likelihood is that it came from a Special Adviser to the First Minister

who had access to the report or an extract from it which was the basis of the Daily

Record story of August 25th 2018.

The question of ‘conspiracy’

It has been a matter of considerable public interest whether there was ‘a conspiracy’. I

have never adopted the term but note that the Cambridge English Dictionary defines it

as ‘the activity of secretly planning with other people to do something bad or illegal.’

I leave to others the question of what is, or is not, a conspiracy but am very clear in

my position that the evidence supports a deliberate, prolonged, malicious and

concerted effort amongst a range of individuals within the Scottish Government and

the SNP to damage my reputation, even to the extent of having me imprisoned.

That includes, for the avoidance of doubt, Peter Murrell (Chief Executive), Ian

McCann (Compliance officer) and Sue Ruddick (Chief Operating Officer) of the SNP

together with Liz Lloyd, the First Minister’s Chief of Staff. There are others who, for

legal reasons, I am not allowed to name.

11

The most obvious and compelling evidence of such conduct is contained within the

material crown office refuses to release. That decision is frankly disgraceful. Refusing

to allow the Committee to see that material both denies me the opportunity to put the

full truth before the Committee and the public, and makes it impossible for the

Committee to complete its task on a full sight of the relevant material. The only

beneficiaries of that decision to withhold evidence are those involved in conduct

designed to damage (and indeed imprison) me.

From a very early stage in the Judicial Review the Government realised that they

were at risk of losing. By October they were told by external counsel that on the

balance of probability they would likely lose. This is the legal advice they have

hidden from the Committee in defiance of two parliamentary votes.

As the Committee has heard in evidence there were 17 meetings of the Committee

formed to monitor and plan the Scottish Government defence of the Judicial Review

between August 2018 and January 2019. Paul Cackette in his evidence said that there

were daily meetings while Ms Mackinnon suggested three times a week. Despite this

information being offered at the evidence session of 1

st December no information has

been received by the Committee of any of these meetings. I believe there have to be

such emails which show the Lord Advocate’s advice on the possibilities of sisting

(pausing) the Judicial Review behind the criminal case. The advantage of doing so in

a context where the Judicial Review was likely to be lost was clear. Any adverse

comment or publicity about the illegality of the Scottish Government actions would

be swept away in the publicity of my arrest and subsequent criminal proceedings.

It became common knowledge in government, special advisers and the SNP that the

Judicial Review was in trouble for the Government and the hope was that police

action would mean that it never came to court, that the JR would be overtaken by the

criminal investigation.

In evidence Ms Allison on 15th September 2020 specifically denied that the Scottish

Government had any role in contacting potential witnesses or former civil servants

after the police investigation had started on August 23rd 2018. This is not true.

I enclose at appendix 2 a copy of an unsolicited email sent by Ms Allison herself to an

ex Scottish Government employee on August 27th who then received a further

unsolicited email from Ms Ruddick of the SNP the following day (appendix 3) The

individual concerned, who provided a defence statement, had never even been a

member of the SNP. I believe her contact details were given to Ms Allison by a

Government Special Adviser.

Another Special Adviser was in contact with the majority of people who thereafter

became complainants in the criminal trial, shortly after the story being leaked to the

Daily Record on August 23rd 2018.

In his evidence session of 8 February 2021 Mr Murrell spoke of the letter sent by the

FM round all SNP members on 27th August 2018. I pause briefly to note that despite

the email reaching 100,000 members, not one complaint about me was received in

response. However, what he did not disclose was the email round SNP staff and ex

staff members sent by his Chief Operating Officer from late August 2018 (enclosed as

12

appendix 3). This email was sent selectively. Some staff members were targeted and

sent it. Others were not.

The recruitment of names to receive this email provoked opposition. Appendix 4

shows the refusal of a senior member of the SNP administrative team at Westminster

to supply names to HQ. The staff member expressed the view that she was not

prepared to take part in an obvious ‘witch-hunt’ which would be incompatible with

her professional responsibilities as a lawyer. At Appendix 5 I enclose the terms of an

affidavit of the staff member who has agreed to have it shared with the Committee.

What is clear is that even at the time of the initial trawl for potentially supportive

individuals, there was profound disquiet about the ethics and legality of the approach.

In addition to advocating the ‘pressurising’ of the police (those text messages are

public and before the Committee), Mr Murrell deployed his senior staff to recruit and

persuade staff and ex staff members to submit police complaints. This activity was

being co-ordinated with special advisers and was occurring after the police

investigation had started and after I ceased to be a member of the SNP. From the

description of the material released to the Committee under section 23 it is clear that

any supporting evidence establishing this point was not shared with the Committee by

the crown office. Why?

It was clear that defeat in the Judicial Review would have severe consequences.

Cabinet Ministers thought it should lead to the resignation of the Permanent

Secretary. The Special Adviser most associated with the policy believed that her job

was in jeopardy and accordingly sought to change press releases in light of that. The

First Minister’s team felt threatened by the process as did the civil service. The

documentary evidence shows that special advisers were using civil servants and

working with SNP officials in a fishing expedition to recruit potential complainants.

This activity was taking place from late August 2018 to January 2019, after the police

investigation had started.

The Judicial Review cannot be viewed in isolation. The effect of it, and its likely

result of a defeat for the Scottish Government led to the need to escalate these matters

to the police, even if that meant doing so entirely against the wishes of the two

women who had raised concerns. The Permanent Secretary’s ‘we’ve lost the battle

but not the war’ message of January 8th 2019 to Ms Allison whilst on holiday in the

Maldives is not (as she tried to claim) a general appeal for equality but rather shows

her knowledge that there were further proceedings to come and her confidence that

the criminal procedure would render such a loss in the Court of Session irrelevant. I

note in passing, that such language is, in any event, totally incompatible with the role

of a professional civil servant.

The Role of the Crown Office

The Crown Office has intervened three times to deny this Committee information for

which it has asked.

This has been done by reliance on legislation which was never designed to obstruct

the work of a Parliamentary Committee acting in the public interest and investigating

13

the actions of the Scottish Government. I know this to be true because I was First

Minister when the legislation was passed in 2010. The true purpose of s. 162 of the

Criminal Justice and Licensing (Scotland) Act 2010 was to prevent witness statements

falling into the hands of the accused and being used to intimidate or exert retribution

on witnesses and further because of instances of evidence ending up held or disposed

of in an insecure fashion. The basis of the legislation was Lord Coulsfield’s Report

(2007) and the intent was to clarify the legal requirements of disclosure and to

establish practical arrangements to prevent the misuse of disclosure. Thus section 162

(and 163) had nothing whatsoever to do with preventing relevant evidence being

presented to a parliamentary Committee and its misinterpretation as such by the

Crown Office is a profoundly disquieting development which strikes at the heart of

the parliamentary system of accountability.

On 17th September 2020 the Crown Office said that our proposal to the Committee to

identify the existence of documents which had not been provided by the Government

but which had been disclosed to me in the criminal case would be covered by Section

163 of the 2010 Act that ‘any person who knowingly uses or discloses information in

contravention of section 162 commits an offence’

Just in case we did not get the message he repeated the same point on 3 November

2020. On 17th December 2020 the Crown’s representative went further to block

information specifically requested by the Committee ‘For you or your client to

accede to the request of the clerk to the Committee would require both the use and

disclosure of said information. As such what is proposed would amount to a clear

breach of section 162 which, by reference to section 163 would amount to a criminal

offence’.

He then appears to suggest that the Committee itself would be in danger of

prosecution if we had acceded to the clerk’s request.

‘Further, any person who received such information from you or your client would

also be in breach of section 162, and consequently section 163, if they use or disclose

that information. In these circumstances I do not consider what is proposed is

acceptable’

This is a letter from an unelected official citing legislation passed by this Parliament

for quite different reasons and using it to deny information to a Committee of elected

parliamentarians. Some of the information we intended to provide included

Government documents which should have been provided to the Committee in the

first place. This position is extraordinary and totally unacceptable.

Given this attitude to disclosure by the Scottish Government and Crown Office, it

becomes highly surprising that when this Committee exerted section 23 powers to

require documents it was given irrelevant information for which it had not asked and

could never be published while relevant information remained undisclosed. It is also

clear that Government SPADS were briefing the media on this information before

members had even seen it. This is not the behaviour of a prosecution department

independent of government influence.

14

The Lord Advocate said in his evidence on 17th November 2020 that he thought the

Committee has seen this correspondence. As far as I am aware this is not the case

Nevertheless, I am happy now to provide that correspondence if the Committee so

wishes. In his latest letter of 8th February the Lord Advocate pointedly fails to answer

the specific question from the Committee Convener of 3rd February seeking

confirmation that all Government records had been provided.

As was glaringly clear from his evidence and his inability to address the most basic of

questions, his denial of provision of the legal advice of external counsel, his costly

delay in settling the case, his refusal to confirm what the Committee eventually found

out that both Counsel threatened to resign from the case, the Lord Advocate is deeply

compromised between his twin roles as head of prosecutions and chief government

legal adviser.

However the matter goes further yet. The Permanent Secretary has confirmed in

evidence to the Committee that the referral to the crown office was contrary to the

express wishes of the complainants. In spite of his protestations that he recused

himself from anything to do with the criminal investigation. I believe that the

Committee should ask the Lord Advocate directly whether he instructed two

unwilling complainants to make police statements.

Secondly the Committee has heard of the highly unusual route via the Crown Agent

that the Permanent Secretary ordered her staff, against the wishes of the complainants,

to present her report to the Chief Constable. Crown Agent David Harvie’s line

manager at that time was Leslie Evans, the Permanent Secretary.

The Crown Office under current leadership is a department simply not fit for purpose.

Summary

The procedure was devised when the Permanent Secretary, as decision maker, had

knowledge of emerging complaints against me. From the outset the Permanent

Secretary was compromised and should not have taken on that role.

The procedure was unsound not just in its implementation but in its genesis. It was

devised ‘at pace’, probably with the purpose of progressing complaints against me

and certainly without proper care or regard to its legality or effective consultation

with the unions.

The documents disclosed to the Committee demonstrate further serious abuses of

process by both the Investigating Officer and the Permanent Secretary.

In a further breach of the duty of candour the Government owed to the Court, those

documents were not made available at Judicial Review.

The Investigating Officer had not just ‘prior involvement’, but subsequently regular

contact with the complainants of a nature and level which was self-evidently

inconsistent with that of an impartial official.

15

The Permanent Secretary who in her own words ‘established’ the procedure met or

spoke to both complainants on multiple occasions (including in mid process) and

failed to disclose this in either the civil or criminal case.

The procedure was conceptually flawed and would have collapsed on principle even

if it had been properly implemented. It is a retrospective, hybrid policy, which claims

jurisdiction over private citizens who might have no connection whatsoever with the

Scottish Government and shows complete confusion between the legitimate roles of

Government and political parties.

It is demonstrably unfair. It transgresses the most basic principles of natural justice in

not even allowing the person complained about the right to prepare their own defence.

In addition, the Permanent Secretary denied access to civil servants, witness

statements or even my diaries until they were pursued in a subject access request.

The Government wasaware at a very early stage that they were at significant risk of

defeat in the Judicial Review, and by October 2018 were advised that, on the balance

of probabilities, they were likely to lose. Nevertheless they kept the clock running and

the public ended up paying over £600,000 as a result.

This information on likely defeat in the JR was communicated to key decision makers

– the Permanent Secretary, First Minster, the Lord Advocate, the Chief of Staff- in

meetings with external Counsel through October and November 2018.

The interests of complainants were disregarded by the Government in refusing

mediation initially without consultation, being given no consultation whatsoever on

the possibility of arbitration, being given false assurances on the Government

accepting their clear view against reporting matters to the police and then sending the

report to the Crown Office against their express wishes. The Government didn’t even

instruct counsel to attend court for the procedural hearing to address my application

to guarantee the anonymity of complainants.

The Crown Office has blocked key information coming to this Inquiry by wilfully

misinterpreting legislation designed for other purposes.

The Lord Advocate is manifestly conflicted in his roles as both Government legal

adviser and prosecutor.

The advice of the Lord Advocate at one stage included, for example, the option of

sisting (pausing) the Judicial Review to allow a criminal case to overtake the JR

proceedings. A consequence of this happening would have been to protect the

government from the catastrophic damage arising from losing the judicial review and

a finding of unlawful conduct.

This prospect provided an incentive and imperative for the recruiting and

encouragement of police complaints from others.

This was done by the closest advisers to the First Minister and senior SNP officials

actively involving civil servants AFTER the police investigation had started.

16

The Permanent Secretary ordered her decision report to be sent to the Crown Agent,

David Harvie, against the terms of the policy and the wishes of the complainants. At

that time I understand that she was his line manager.

Against police advice the Permanent Secretary decided to press release the fact of

complaints on Thursday 21st August 2018. That publication was only prevented by

threat of legal action by my solicitors.

A matter of hours later, there was what the ICO assessed as a prima facie criminal

leak of information including details of complaints to the Daily Record, in breach of

my rights of confidentiality, and those of the complainants. Such action was also

contrary to the express assurances of confidentiality offered to all parties and central

to such workplace issues.

The Judicial Review was only conceded when both Counsel threatened to resign from

the case

The policy and actions of the Permanent Secretary and the Government were accepted

as and then judged as ‘unlawful’, ‘procedurally unfair’ and ‘tainted by apparent

bias’.

The real cost to the Scottish people runs into many millions of pounds and yet no-one

in this entire process has uttered the simple words which are necessary on occasions

to renew and refresh democratic institutions – ‘I Resign’.

The Committee now has the opportunity to address that position.

Rt. Hon. Alex Salmond

17th February 2021

From: Alex Salmond

Sent: 15 February 2021 03:07

To: David McKie ; Duncan Hamilton

Subject: APPENDIX 2

From:

Date: August 27, 2018 at 7:46:13 AM GMT-5

To: REDACTED

Cc:

Subject: Personal

Hello (REDACTED)

I am not sure if you will remember me. I was Director of People/HR at the time you

worked with Scottish Government. I hope that this finds you well.

You may be aware that there has been considerable media coverage here over the

past few days in connection with the former First Minister. We are aware that this

coverage has been quite upsetting for some people and we are keen to support in

any way we can.

Your name and email address has been provided by a current employee at the

Scottish Government, noting that you were someone who worked with Scottish

Government previously and they were keen to ensure that you were offered any

support you may require.

I would be very happy to have a chat by phone or by email and put you in touch with

the various support channels if that would be helpful.

Kind regards

Barbara

BARBARA ALLISON,

Director, Communications, Ministerial Support and Facilities

Scottish Government.

Tel:

Sent from my iPad

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Appendix 2

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Appendix 3

Appendix 5

Submission by Alex Salmond – Phase 4 – Ministerial Code

1

Submission by Alex Salmond – Phase 4 – Ministerial

Code

Introduction

1. This is a submission to the Parliamentary Committee under Phase Four of

the Inquiry. This submission is compliant with all legal obligations under the

committee’s approach to evidence handling and takes full account of the Opinion

of Lady Dorrian in the High Court as published on 16th February 2021.

All WhatsApp messages between myself and the First Minister referred to in this

submission, have previously been provided to the Parliamentary Committee by

the First Minister and published by the Committee.

The Terms of Reference

2. Mr Hamilton, the independent adviser on the Ministerial Code, wrote to me on

8th September, 29th October, 16th November, 4th and 19th December. I replied

on 6th and 17th October, 23rd November and 23rd December. I finally agreed

under some protest to make a written submission.

The reason for my concern was that the remit drawn up for Mr Hamilton focuses

on whether the First Minister intervened in a civil service process. As I have

pointed out to Mr Hamilton, I know of no provisions in the Ministerial Code

which makes it improper for a First Minister to so intervene.

3. To the contrary, intervention by the First Minister in an apparently unlawful

process (subsequently confirmed by the Court of Session) would not constitute a

breach precisely because the First Minister is under a duty in clause 2.30 of the

Ministerial Code to avoid such illegality on the part of the Government she leads.

4. Further, to suggest intervention was a breach would be to ignore and

contradict the express reliance of the procedure on the position of the First

Minister as the leader of the party to which the former minister was a member in

order to administer some unspecified sanction.

5. It will accordingly be a significant surprise if any breach of the Ministerial

Code is found when the terms of reference have been tightly drafted by the

Deputy First Minister to focus on that aspect of the First Minister’s conduct.

6. By contrast, I have information which suggests other related breaches of the

Ministerial Code which should properly be examined by Mr Hamilton. I have

2

asked that he undertake that investigation. I have drawn his attention to the

apparent parliamentary assurance from the First Minister on 29th October 2020

that there was no restriction on Mr Hamilton preventing him from doing so.

7. Mr Hamilton has failed to give me a clear response as to whether these related

matters relevant to the Ministerial Code, but outwith the specific remit, are

going to be considered. However, in his letter of 4th December he did indicate

that he was inclined to the view that such matters could be considered and will

take into account arguments for their inclusion. Since that time I understand

members of the Committee have received further assurances. It is on that basis I

make this submission.

8. In doing so, I would note that it does not serve the public interest if the

independent process of examination of the Ministerial Code (which I introduced

as First Minister) is predetermined, or seen to be predetermined, by a restrictive

remit given by the Deputy First Minister.

9. A restricted investigation would not achieve its purpose of genuine

independent determination and would undermine confidence in what has been a

useful innovation in public accountability.

10. I would accordingly urge Mr Hamilton to embrace the independence of his

role and the express assurance given to the Scottish Parliament by the First

Minister that he is free to expand the original remit drafted by the Deputy First

Minister and to address each of the matters contained in this submission.

Breaches of the Ministerial Code.

11. Beyond the terms of the remit set for Mr Hamilton by the Deputy First

Minister, there are other aspects of the conduct of the First Minister which, in my

submission, require scrutiny and determination in relation to breaches of the

Ministerial Code.

12. I was contacted by phone on or around 9 March 2018 and further the

following week by Geoff Aberdein, my former Chief of Staff. The purpose of the

contact was to tell me about meetings he had held with the First Minister’s Chief

of Staff, Liz Lloyd, at her request.

13. In the second of these meetings she had informed him that she was aware of

two complaints concerning me under a new complaints process introduced to

include former Ministers. She named one of the complainers to him. At that stage

I did not know the identity of the other complainer.

14. On receipt of the letter from the Permanent Secretary first informing me of

complaints on 7th March 2018 I had secured Levy and McRae as my solicitors

and Duncan Hamilton, Advocate and Ronnie Clancy QC as my counsel.

15. Even at this early stage we had identified that there were a range of serious

deficiencies in the procedure. There was no public or parliamentary record of it

3

ever being adopted. In addition it contained many aspects of both procedural

unfairness and substantive illegality. There was an obvious and immediate

question over the respect to which the Scottish Government even had

jurisdiction to consider the complaints. In relation to former Ministers (in

contrast to current Ministers) it offered no opportunity for mediation. The

complaints procedure of which I was familiar (‘Fairness at Work’) was based on

the legislative foundation of the Ministerial Code in which the First Minister was

the final decision maker. I wished to bring all of these matters to the attention of

the First Minister. I did not know at that stage the degree of knowledge and

involvement in the policy on the part of both the First Minister and her Chief of

Staff.

16. Mr Aberdein had been asked by Ms Lloyd to be her contact with me and they

jointly arranged a meeting with the First Minister in the Scottish Parliament on

29th March 2018. This meeting was for the purpose of discussing the complaints

and thereafter arranging a direct meeting between myself and the First Minister.

There was never the slightest doubt what the meeting was about. Any suggestion

by the First Minister to the Scottish Parliament (Official Report, 8th October

2020) that the meeting was ‘fleeting or opportunistic’ is simply untrue. It was

agreed on the 29th March 2018 at the meeting in the Scottish Parliament

attended by Mr Aberdein and the First Minister and another individual that the

meeting between myself and the First Minister would take place on 2nd April at

her home near Glasgow. Self-evidently only the First Minister could issue that

invitation to her private home.

17. In attendance at the meeting on 2nd April 2018 were Mr Aberdein, Mr

Hamilton, Ms Lloyd and myself. The First Minister and I met privately and then

there was a general discussion with all five of us. My purpose was to alert the

First Minister to the illegality of the process (not being aware at that time of her

involvement in it) and to seek an intervention from the First Minister to secure a

mediation process to resolve the complaints.

18. I was well aware that under the Ministerial Code the First Minister should

notify the civil service of the discussion and believed that this would be the point

at which she would make her views known. The First Minister assured us that

she would make such an intervention at an appropriate stage.

19. On 23rd April 2018, I phoned the First Minister by

arrangement on WhatsApp to say that a formal offer of mediation was being

made via my solicitor to the Permanent Secretary that day. In the event ,

this offer was declined by the Permanent Secretary, even before it was put to the

complainers.

20. By the end of May, it was becoming clear that the substantial arguments my

legal team were making in correspondence against the legality of the procedure

were not having any impact with the Permanent Secretary. My legal team

advised that it was impossible properly to defend myself against the complaints

under such a flawed procedure. They advised that a petition for Judicial Review

would have excellent prospects of success given the Government were acting

4

unlawfully. However I was extremely reluctant to sue the Government I once led.

I wanted to avoid the damage both to the Scottish Government and the SNP

which would inevitably result. To avoid such a drastic step, I resolved to let the

First Minister see the draft petition for Judicial Review. As a lawyer, and as First

Minister, I assumed that she would see the legal jeopardy into which the

government was drifting. I therefore sought a further meeting.

21. On 1st June 2018 the First Minister sent me a message which was the

opposite of the assurance she had given on the 2nd April 2018 suggesting

instead that she had always said that intervention was ‘not the right thing to do’.

That was both untrue and disturbing. On 3rd June 2018 I sent her a message on

the implications for the Government in losing a Judicial Review and pointing to

her obligation (under the Ministerial Code) to ensure that her administration

was acting lawfully and (under the Scotland Act) to ensure that their actions

were compliant with the European Convention.

22. The First Minister and I met in Aberdeen on 7th June 2018 when I asked

her to look at the draft Judicial Review Petition. She did briefly but made it clear

she was now disinclined to make any intervention.

23. My desire to avoid damaging and expensive litigation remained. My legal

team thereafter offered arbitration as an alternative to putting the matter before

the Court of Session. That proposal was designed to offer a quick and relatively

inexpensive means of demonstrating the illegality of the procedure in a process

which guaranteed the confidentiality of the complainers. It would also have

demonstrated the illegality of the process in a forum which would be much less

damaging to the Scottish Government than the subsequent public declaration of

illegality. I was prepared at that time to engage fully with the procedure in the

event my legal advice was incorrect. In the event, of course, it was robust. I

explained the advantages of such an approach to the First Minister in

a Whatsapp message of 5th July 2018.

24. At the First Minister’s initiative which I was informed about on the 13th July

we met once again at her home in Glasgow at her request, the following day, 14th

July 2018. There was no one else at this meeting. She specifically agreed to

correct the impression that had been suggested to my counsel in discussion

between our legal representatives that she was opposed to arbitration. I

followed this up with a WhatsApp message on the 16th July 2018.

25. On 18th July 2018 the First Minister phoned me at 13.05 to say that

arbitration had been rejected and suggested that this was on the advice of the

Law Officers. She urged me to submit a substantive rebuttal of the specific

complaints against me, suggested that the general complaints already answered

were of little consequence and would be dismissed, and then assured me that my

submission would be judged fairly. She told me I would receive a letter from the

Permanent Secretary offering me further time to submit such a rebuttal

which duly arrived later that day. As it turned out the rebuttal once submitted

was given only cursory examination by the Investigating Officer in the course of

a single day and she had already submitted her final report to the Permanent

5

Secretary. My view is now that it was believed that my submission of a rebuttal

would weaken the case for Judicial Review (my involvement in rebutting the

substance of the complaints being seen to cure the procedural unfairness) and

that the First Ministers phone call of 18th July 2018 and the Permanent

Secretary’s letter of the same date suggesting that it was in my ‘interests’ to

submit a substantive response was designed to achieve that.

26. In terms of the meetings with me, the only breaches of the Ministerial Code

are the failure to inform civil servants timeously of the nature of the meetings.

27. My view is that the First Minister should have informed the Permanent

Secretary of the legal risks they were running and ensured a proper examination

of the legal position and satisfied herself that her Government were acting

lawfully.

28. Further once the Judicial Review had commenced, and at the very latest by

October 31st 2018 the Government and the First Minister knew of legal advice

from external counsel (the First Minister consulted with counsel on 13th

November) that on the balance of probability they would lose the Judicial Review

and be found to have acted unlawfully. Despite this the legal action was

continued until early January 2019 and was only conceded after both

Government external counsel threatened to resign from the case which they

considered to be unstateable. This, on any reading, is contrary to section 2.30 of

the Ministerial Code.

29. Most seriously, Parliament has been repeatedly misled on a number of

occasions about the nature of the meeting of 2nd April 2018.

30. The First Minister told Parliament (see Official Report of 8th,10th & 17th

January 2019) that she first learned of the complaints against me when I visited

her home on 2nd April 2018. That is untrue and is a breach of the Ministerial

Code.

The evidence from Mr Aberdein that he personally discussed the existence of the

complaints, and summarised the substance of the complaints, with the First

Minister in a pre arranged meeting in Parliament on 29th March 2018 arranged

for that specific purpose cannot be reconciled with the position of the First

Minister to Parliament. The fact that Mr Aberdein learned of these complaints in

early March 2018 from the Chief of Staff to the First Minister who thereafter

arranged for the meeting between Mr Aberdein and the First Minister on 29th

March to discuss them, is supported by his sharing that information

contemporaneously with myself, Kevin Pringle and Duncan Hamilton, Advocate.

31. In her written submission to the Committee, the First Minister has

subsequently admitted to that meeting on 29th March 2018, claiming to have

previously ‘forgotten’ about it. That is, with respect, untenable. The pre-arranged

meeting in the Scottish Parliament of 29th March 2018 was ‘forgotten’ about

because acknowledging it would have rendered ridiculous the claim made by the

First Minister in Parliament that it had been believed that the meeting on 2nd

6

April was on SNP Party business (Official Report 8th & 10th January 2019) and

thus held at her private residence. In reality all participants in that meeting were

fully aware of what the meeting was about and why it had been arranged. The

meeting took place with a shared understanding of the issues for discussion –

the complaints made and the Scottish Government procedure which had been

launched. The First Minister’s claim that it was ever thought to be about

anything other than the complaints made against me is wholly false.

The failure to account for the meeting on 29th March 2018 when making a

statement to Parliament, and thereafter failing to correct that false

representation is a further breach of the Ministerial Code.

Further, the repeated representation to the Parliament of the meeting on the 2nd

April 2018 as being a ‘party’ meeting because it proceeded in ignorance of the

complaints is false and manifestly untrue. The meeting on 2nd April 2018 was

arranged as a direct consequence of the prior meeting about the complaints held

in the Scottish Parliament on 29th March 2018.

32. The First Minister additionally informed Parliament (Official Report 10th

January 2019) that ‘I did not know how the Scottish Government was dealing

with the complaint, I did not know how the Scottish Government intended to

deal with the complaint and I did not make any effort to find out how the Scottish

Government was dealing with the complaint or to intervene in how the Scottish

Government was dealing with the complaint.’

I would contrast that position with the factual position at paragraphs 18 and 25

above. The First Minister’s position on this is simply untrue. She did initially

offer to intervene, in the presence of all those at the First Ministers house on the

2nd April 2018. Moreover, she did engage in following the process of the

complaint and indeed reported the status of that process to me personally.

33. I also believe it should be investigated further in terms of the Ministerial

Code, whether the criminal leak of part of the contents of the Permanent

Secretary’s Decision report to the Daily Record was sourced from the First

Minister’s Office. We now know from a statement made by the Daily Record

editor that they received a document. I enclose at Appendix B the summary of

the ICO review of the complaint which explains the criminal nature of the leak

and the identification of 23 possible staff sources of the leak given that the ICO

Prosecutor has ‘sympathy with the hypothesis that the leak came from an

employee of the Scottish Government’. My reasoning is as follows. The leak did

not come from me, or anyone representing me. In fact I sought interdict to

prevent publication and damage to my reputation. The leak is very unlikely

indeed to have come from either of the two complainers. The Chief Constable,

correctly, refused to accept a copy of the report when it was offered to Police

Scotland on August 21st 2018 by the Crown Agent. It cannot, therefore have

leaked from Police Scotland. Scottish Government officials had not leaked the

fact of an investigation from January when it started. The only additional group

of people to have received such a document, or summary of such a document, in

the week prior to publication in the Daily Record was the First Minister’s Office

7

as indicated in paragraph 4.8 of the ICO Prosecutor’s Report. In that office,

the document would be accessed by the First Minister and her Special Advisers.

I would be happy to support this submission in oral evidence.

Rt Hon Alex Salmond

17th February 2021

Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF

T. 0303 123 1113 F. 01625 524510

www.ico.org.uk

Our ref: CH/IC/0295/2018

Mr David McKie

Levy & McRae

Pacific House

70 Wellington Street

Glasgow

G2 GUA

By email only:

Dated 28 May 2020

Dear Mr McKie

Re: Your Client – Mr A. Salmond/ Your Ref DMK/LL/STE039-0001

1. Introduction

1.1 Further to a request made on behalf of your above client, I have been

asked to review a decision made by the Criminal Investigations Team

(CRIT) at the ICO to discontinue an investigation into potential offences

under s.170 Data Protection Act (DPA) 2018, in accordance with the

Victims Right to Review scheme.

1.2 I am a Solicitor (Prosecutor) based within the Regulatory Enforcement

Team at the ICO. I confirm that I have had no previous dealings with

the matter.

1.3 My remit is to consider whether, having investigated the complaint, the

decision made by the investigations team to not investigate further was

correct and reasonable.

[Redacted]

Appendix B

1.4 I have had full access to, and have carefully reviewed, all material

gathered and held by CRIT during the course of their investigations.

1.5 The review concerns the outcome of an investigation into a complaint

made under s.165 DPA 2018 on behalf of Mr Salmond to the ICO on

the 29 October 2018.

1.6 The complaint pertained to the suspected unlawful obtaining and

disclosing of personal data relating to Mr Salmon to the press in August

2018; a potential offence under s.170 DPA 2018.

1.7 The data was contained within a report relating to the outcome of an

internal misconduct investigation, which was leaked to the press on the

23 August 2018 and published in the Daily Record on 23 and 25 August

2018.

1.8 Furthermore, the fact and content of legal advice from the Lord

Advocate to the Scottish Government regarding the allegations made

against Mr Salmond were reported in an article in The Sunday Post

published on the 26th August 2018 and again in The Herald on 12

November 2018.

2. Relevant Law

2.1 Under s.170 DPA 2018, it is an offence to, knowingly or recklessly,

obtain, disclose, procure disclosure or retain personal data without the

consent of the data controller.

2.2 The information contained in the internal misconduct report and the

legal advice was highly sensitive and personal, in that it related to

allegations of misconduct made against Mr Salmond. It would certainly

meet the definition of ‘personal data’ pertaining to a living individual as

per s.3(2) DPA 2018.

2.3 It was clear from the events set out in the complaint sent on behalf of

Mr Salmond that the personal data had indeed been obtained and

disclosed to the press.

2.4 The ensuing investigation by the ICO was to establish whether any

individual could be identified and potentially prosecuted for the unlawful

obtaining and/or disclosing of the data under s.170 DPA 2018.

2.5 The offence of unlawfully obtaining and/or disclosing personal data

contrary to s.170 DPA 2018 is an offence committed against the data

controller. In this matter, the personal data contained in the internal

misconduct investigation report and in legal advice from the Lord

Advocate, belonged to the Scottish Government (SG).

2.6 The SG was therefore the data controller in accordance with s.3(6) DPA

2018 and the potential complainant in this matter.

2.7 As the data subject under s.3(5) DPA 2018, Mr Salmond would

however also be classed as a ‘victim’. Any impact on him resulting from

the offence would of course therefore be an important consideration in

ascertaining the level of harm caused by the offence.

2.8 The issue for the investigations team was whether the source of the

data leak could be identified, to enable a prosecution to be brought

against the individual responsible under s.170 DPA 2018.

3. Review of the evidence

3.1 In order to identify a suspect, it would be necessary to identify

the method of disclosure used.

3.2 A forensic examination of the IT systems used by the SG was carried out

as part of the Data Handling Review conducted by the Data Protection

Officer at the SG following the data leak.

3.3 No evidence was found that data was leaked through email, document

sharing or downloading to portable media device. Furthermore, no

evidence was found that a third party had unlawfully accessed the SG’s

IT systems.

3.4 Without an electronic trail to follow, it was difficult to uncover the

method of disclosure used.

3.5 To progress the investigation, a witness would be needed who

would be willing to provide information about the method of disclosure

(for example, by hard copy being passed in person) and the identity of

the culprit.

3.6 The Daily Record had declined to provide information as to how or by

whom they came by the copy of the report, relying on the journalistic

exemption within the DPA 2018, clause 14 of the Editors Code of

Practice and s.10 of the Contempt of Court Act 1981.

3.7 23 members of staff were identified as having knowledge of, or

involvement in, the internal misconduct enquiry. These members of

staff were interviewed by the Data Protection Officer at the SG as part

of their Data Handling Review. The interviews did not disclose any

information which would enable a suspect to be identified.

3.8 In the absence therefore of any further information coming to light, or

any witness coming forward, there was insufficient evidence to point to

any specific suspect and to allow the investigation to move forward.

4. Representations on behalf of Mr Salmond

4.1 In addition to all the material provided by the SG, I have also

considered the representations made on behalf of Mr

Salmond in previous correspondence with Levy & McRae, in particular

the submission that the timing of the leak to the press raises an

irresistible conclusion that the leak came from within the SG.

4.2 The leak came a few hours after the SG had notified their intention to

publish a press release and very shortly after Levy & McRae had given

notice of their intention to apply for an interim interdict. The effect of

the leak was to defeat the court action because the information was by

then in the public domain.

4.3 I have also considered the statement of Detective Chief Superintendent

, helpfully provided by Levy & McRae. The statement

confirms that at a meeting on the 21 August 2018, the police were

offered a copy of the internal misconduct investigation report but

refused to take it. Furthermore, at that meeting, DCS voiced

[Redacted]

[Redacted]

concerns about the SG making a public statement about the outcome of

their investigations.

4.4 Levy & McRae point to this statement to show that the SG (or an

employee thereof) wanted the information to get into the public domain

and to show that the police are highly unlikely to have been the source

of the leak.

4.5 The SG sent a proposed press release to Levy & McRae on the 23

August. In response, Levy & McRae notified the SG of their intention to

apply for an interim interdict. The SG responded by confirming that

they would not issue the press release in the meantime. Events were

then of course overtaken by the leak of the information to the press and

into the public domain.

4.6 I have sympathy with the hypothesis that the leak came from an

employee of the SG and agree that the timing arguably could raise such

an inference. It was still necessary to identify a suspect.

4.7 The interviews with the relevant staff members didn’t provide any leads

however and no other person had come forward volunteering

information.

4.8 There remains the possibility that the leak came from elsewhere. The

list of stakeholders who had access to the internal misconduct

investigation report includes the original complainants, the QC, the First

Minister’s Principal Private Secretary, the Crown Office & Procurator

Fiscal Service and Mr Salmond and Levy & McRae, as well as the

relevant staff members of the SG.

4.9 The list of stakeholders who had access to the legal advice provided by

the Lord Advocate during the misconduct investigation included staff

within the Lord Advocate’s office, the Permanent Secretary’s Office and

officials in the SG’s Legal Directorate.

4.10 Following investigation, there was no evidence to identify any specific

individual within these lists, or any member of staff working for anybody

within these lists, as a potential suspect.

5. Review of decision by CRIT

5.1 As investigators, CRIT must have regard to the provisions of the

Criminal Procedures and Investigations Act 1996, specifically

s.23(1) Code of Practice Part II.

5.2 Point 3.5 provides that the investigator shall pursue all reasonable lines

of inquiry. CRIT have a duty therefore to investigate data complaints to

an appropriate extent.

5.3 During this investigation, it is clear that CRIT gathered extensive

information from the SG, seeking further information and clarification

where needed.

5.4 The result was no suspect could be identified from the evidence collated

and the decision was taken that the investigation could not be

progressed without further information coming to light.

5.5 I am satisfied that the complaint had been investigated to an

appropriate extent, with all reasonable avenues of inquiry considered

and/or pursued.

5.6 When deciding whether to proceed to prosecute in any case, I am

required to apply the two stage test prescribed by the Code for Crown

Prosecutors issued by the Crown Prosecution Service.

5.7 The first stage is to consider whether there is sufficient evidence to

provide a realistic prospect of conviction. Without a suspect, there is

simply no realistic prospect of conviction because there is nobody to

prosecute and/or convict. I do not therefore even reach the second

stage of the test, which is to consider whether it would be in the public

interest to prosecute.

5.8 I am satisfied that in the absence of any suspect, the decision to

discontinue the investigation was correct and reasonable in all the

circumstances.

5.9 If further information comes to light, for example if a witness comes

forward, then I have no doubt that the matter would be properly

revisited. At the present time, however, I am satisfied that there are no

grounds to re-instate the investigation.

Yours sincerely,

Solicitor (Prosecutor)

[Redacted]

James Hamilton

Independent Adviser on the Scottish Ministerial Code

c/o E:

Alex Salmond,

c/o Levy & McRae

Pacific House

70 Wellington St

Glasgow

G26UA

8 September 2020

Dear Mr Salmond,

SCOTTISH MINISTERIAL CODE: FIRST MINISTER’S SELF-REFERRAL

As you may know, I have been appointed as the independent adviser to consider the First

Minister’s self-referral under the Ministerial Code. I attach a copy of the Parliamentary

answer which sets out the remit for the referral.

My purpose in writing is to seek your cooperation in my enquiries, and to request from you a

range of information to assist me in preparing my report.

I would be grateful if you would supply me with a general statement about your actions and

involvement in the matters covered by my remit.

This should include, but not be limited to: an indication of what were the intentions that lay

behind your actions and, in particular, the series of contacts that you had with the First

Minister; and, any other information that would assist me in my considerations.

In addition to a general statement, I would welcome your response to a series of specific

questions as follows:

1. Details of all contacts you, or anyone representing you, had with the First Minister or any

civil servant or special advisor between 16 January 2018, when the first complaint was

made under the Scottish Government’s Procedure for the Handling of Harassment

Complaints involving Current or Former Ministers, and 18 July 2018, when a second

telephone conversation took place, which, according to the First Minister, was the last

contact between the First Minister and yourself. Could you also provide details of the

purpose of your communication with the First Minister?

[Redacted]

Appendix C

EMAIL EXCHANGES BETWEEN MR ALEX SALMOND AND

MR JAMES HAMILTON

1. Mr Salmond to Mr Hamilton

31st December 2020

Dear

Correspondence for Mr Hamilton

Please see attached correspondence, submission and two

appendices for the attention of Mr James Hamilton. Please

confirm receipt and thank you for your assistance.

Best wishes for 2021

Yours for Scotland

Alex Salmond

2. Mr Hamilton to Mr Salmond

19th December 2020

Dear Mr. Salmond,

Further to my letter of 7 December 2020, I repeat my enquiry

whether you are prepared to provide a written statement to help

me with my investigation. It would be very helpful to have a

written statement from you, with as much information as you

feel able to provide, setting out your responses to the questions

included in previous correspondence.

[Redacted]

Appendix D

As you are aware the Ministerial Code provides that the First

Minister may refer matters to the independent advisers to

provide her with advice on which to base her judgment about

any action required in respect of Ministerial conduct. The First

Minister has made such a referral to me on foot of which I have

sought written statements from all the persons whom I have

identified as likely to have evidence relevant to that remit. I

have now received written statements from every person whom

I have so identified except you.

As you are also aware I have no power to compel any person to

cooperate with me. That being so I must formulate my advice

on the evidence and information which is available to me. I also

consider that the First Minister is entitled to expect that I will do

so in a reasonably expeditious manner.

I therefore now intend to complete my consideration of written

statements as soon as possible. In order for any statement from

you to form part of that consideration I will need to receive it

without delay. If you do intend to make a statement I would

appreciate it if you could let me know when I might expect to

receive it, otherwise I shall assume that you have decided not

to become involved in this process.

Yours sincerely,

James Hamilton

3. Mr Hamilton to Mr Salmond

Dated 4th December 2020 but emailed on 7th December

2020

Dear Mr. Salmond

Thank you for your letter of 23 November sent via email to

.

I consider it necessary in order for me to fulfil my remit that I

obtain a full understanding of what was the purpose of the

meetings between you and the First Minister and what occurred

at them. Your evidence is therefore of great importance to me.

I am prepared to consider any arguments you may wish to

advance about the scope of my remit. However, until I know

what evidence you wish to give it would be premature for me to

form a decided opinion on whether the remit should be

extended or, in the event that I accepted the case for an

extension, on how I should then proceed.

My inclination is to think that in the case of matters which form

part of, or are closely related to, the subject matter of the remit it

could be open to me to consider whether any provisions of the

Ministerial Code other than those mentioned expressly in the

remit had been broken. However, that situation is distinct from

broadening the factual scope of the inquiry. I am, of course,

prepared to consider any arguments you may wish to make

before coming to a final conclusion on this point.

Although the procedure for an inquiry by an independent

advisor under the Ministerial Code is a relatively informal one

the rules of natural justice apply including in particular my

obligation to hear both sides of any question which arises for

determination. This, in my opinion, extends not only to the

[Redacted]

consideration of evidence but also to any questions which may

arise as to the scope of the remit.

It follows that if a question arises as to whether a particular

matter can be regarded as falling within the scope of the remit

or, if it does not, whether that scope ought to be expanded, it

would be wrong of me to take a decided view on those issues

based solely on your submissions without also giving the First

Minister an opportunity to comment on them.

I would therefore suggest that you let me see your proposed

evidence as soon as possible, together with any observations

you may wish to make about the scope of the remit. If

necessary I will then seek the First Minister’s observations

before I decide how I should deal with the matter.

Finally, with regard to your suggestion that there was a ‘criminal

leak’ to a newspaper I have no function to investigate crimes

which should be reported to the proper authorities.

Yours sincerely,

James Hamilton

4. Mr Salmond to Mr Hamilton

23rd November 2020

Dear Mr Hamilton

Thank you for your letter of 29th October. I apologise for the

delay in replying, but I had assumed that it had crossed with the

exchange in the Scottish Parliament, detailed below, of that

same date. To that end, I was awaiting a follow up letter from

you, confirming that indeed your remit was not ‘limited to one

aspect of the Ministerial Code’;

• Oliver Mundell (Dumfriesshire) (Con): Will the First

Minister agree to expand the ministerial code investigation

to include her statements to Parliament and her actions on

the legal advice regarding the judicial review into Alex

Salmond’s alleged behaviour?

• The First Minister (Nicola Sturgeon): My view right now

is that James Hamilton, who is the adviser undertaking the

investigation into the ministerial code, is not restricted at all

in the issues that he can look at. If he thinks that there are

any issues that engage the ministerial code or could in any

way constitute a breach of the ministerial code, my view is

that he is free to look at them. If he considers that that

requires any change to his official remit, I am sure that he

is perfectly able to say that. However, for the record and to

be clear, I do not consider his remit to be limited to just one

aspect of the ministerial code.

You will have noted that this parliamentary exchange seems at

odds with your letter, which suggests that you are restricted to

answering the ‘questions asked in the referral’. You state;

‘As you are aware the remit of the referral was set out by the

Deputy First Minister in a PQ response to the Scottish

Parliament made on 6 August 2020. Considering that the

principal matter I am asked to consider concerns an alleged

breach of the Ministerial Code in the First Minister’s failure to

record contacts with you it seems entirely logical to ask the

question whether the First Minister was in fact involved in any

way in the Scottish Government investigation. In seeking to

answer the questions asked in the referral I will of course have

to consider any relevant surrounding circumstances.’

As detailed in my previous letter, I know of no aspect of the

Ministerial Code which prevents a First Minister intervening in a

process, not least one which was found by the Court of Session

to be ‘unlawful’, and as one consequence of which said

process is currently being examined by the SGHHC Committee

of the Scottish Parliament.

As I understand it, not intervening to ensure Government is not

acting unlawfully when there is a danger that this might be the

case, could be considered a breach in terms of the Ministerial

Code. Non-intervention in this matter is relevant to the period

covering spring and summer of 2018, and in the autumn, this

extended to agreeing with or permitting the Permanent

Secretary to disregard external legal advice on the

Government’s prospects of success in the Judicial Review.

This was further compounded by Parliamentary statements on

repeated occasions, which have been questioned by MSPs as

misleading, most pertinently in relation to the timing of when the

First Minister first knew of the investigation and the explanation

that the 2nd April meeting was held in the First Minister’s private

home because she thought it was a matter of party business.

There is, of course, the further question of the criminal leak of

protected information to the Daily Record newspaper on

23/24th August 2018 and what, if anything, was the First

Minster’s state of awareness of the circumstances and the

potential involvement of her staff in same.

When I established the independent procedure for referral of

purported First Ministerial breaches of the Ministerial Code, it

was an innovation and one carried through in good faith. I

appointed people of outstanding calibre, such as yourself as

independent advisors, so that no-one could suggest that any

referrals were being ‘fixed’ either by the civil service or the

Government.

It would be disappointing if this is now being done by the

Deputy First Minister, by virtue of confining your terms of

referral.

I look forward to your confirmation that your remit is not ‘limited

to just one aspect of the Ministerial code’. On that basis I will

submit the evidence for which you have asked.

Two final matters.

Firstly, I enclose the letter from the Crown Office which you

requested. As you will note, it threatens prosecution if I were to

reveal to the Parliamentary Committee (and presumably to

yourself) documents which were disclosed in the course of the

criminal case.

Secondly, I confirm that the record of Whatapp messages

between the First Minster and myself from 5 November 2017 to

20 July 2018 supplied to the Parliamentary Committee by the

First Minister and published on their website is correct. There is

however, one exception.

I look forward to hearing from you

Yours sincerely

Rt Hon Alex Salmond

[Redacted]

5. Mr Hamilton to Mr Salmond

Dated 29th October 2020 but emailed on 16th November

2020

29 October 2020

Dear Mr. Salmond,

As I set out in my letter dated 29 October, I am in the process of

considering written submissions in relation to the matters

referred to me by the First Minister as independent adviser in

relation to the Ministerial Code and considering what additional

information I may need to gather. I have now received written

submissions from all the principal persons whom I believe may

have relevant evidence except for you.

I would hope to be able to consider any written submission you

might wish to provide as part of that process. It would therefore

be helpful to me if you could indicate whether you intend to

provide a written submission and if so when it might be

available.

Yours sincerely,

James Hamilton

6. Mr Hamilton to Mr Salmond

29th October 2020

Dear Mr. Salmond,

Thank you for your emails of 6th October and 17th October

asking various clarification questions about the work I am

undertaking. I apologize for the delay in acknowledging your

first email, and for the delay in providing a substantive

response. Your correspondence raised a number of significant

questions which I wanted to give full consideration to.

Regarding the first point, I note what you say about

representing yourself. I will, of course, have no control over

what you put in your submissions. I can confirm that I will do my

best to ensure that nothing in my report will be in breach of any

applicable court orders.

In relation to your second point, thank you for drawing my

attention to the two court interlocutors attached to your letter. I

will have regard to these when conducting my investigation. I

would indeed appreciate receiving a copy of the letter from the

Crown Office which you refer to. Again, as I have just stated, I

will do my best to ensure that nothing in my report will be in

breach of any applicable court orders.

On the third point, as you will know, James Hynd’s role as head

of Cabinet Secretariat includes supporting Ministers in matters

relating to the Ministerial Code. On that basis, Mr. Hynd

supported the Deputy First Minister in establishing the referral I

have been asked to undertake.

Mr. Hynd has stepped away from the process and

has been appointed as Head of Secretariat Support to

support my work as I require. I can confirm therefore that

James Hynd will not play any role in relation to the day to day

conduct of the inquiry or in the finalisation of my report and any

recommendations that I may make.

I note your comment concerning my remit. As you are aware the

remit of the referral was set out by the Deputy First Minister in a

PQ response to the Scottish Parliament made on 6 August

2020. Considering that the principal matter I am asked to

[Redacted]

[Redacted]

consider concerns an alleged breach of the Ministerial Code in

the First Minister’s failure to record contacts with you it seems

entirely logical to ask the question whether the First Minister

was in fact involved in any way in the Scottish Government

investigation. In seeking to answer the questions asked in the

referral I will of course have to consider any relevant

surrounding circumstances.

In relation to the issues raised in your second email, I can

confirm that any response to my enquiries relating to the factual

matters I am asked to enquire into will be used in the

compilation of the report. I have not yet decided fully on the

format of the report but any reply to such enquiries will be liable

to be published with the exception of material which cannot be

made public as a result of court orders or for other legal

reasons.

I have set out various matters relevant to your questions in my

recent correspondence with the Parliamentary committee.

https://www.parliament.scot/HarassmentComplaintsCommittee/

James Hamilton.pdf

With regard to incidental queries it would not be my intention to

publish them as a matter of routine and it would be my

preferred option to make no comment pending the completion

of my enquiries. However, I am concerned not to favour or be

perceived to favour any particular interested party in the matter

and therefore if I were asked questions concerning contacts

between interested parties and me I might well think it proper or

necessary in the public interest and in particular in the interests

of transparency to give a full reply.

For that reason I cannot exclude the possibility that any

correspondence between us might at some stage be published.

I hope this answers your questions.

As you know, I am currently in the process of considering

written submissions and what additional information I may need

to gather. It would be helpful if you were able to indicate when

you would be able to offer a written submission.

James Hamilton

7. Mr Salmond to Mr Hamilton

17th October 2020

Mr James Hamilton

Independent Adviser on The Scottish Ministerial Code.

17th October 2020

Dear Mr Hamilton

Further to my letter of 8th October I await an answer to the

questions posed or an acknowledgement of the email. Could

you ask your staff to provide this?

I am now in receipt of several press queries on whether I have

been in communication with you. My practice with the

Parliamentary Committee has been to ‘no comment’ but draw

attention to the publication of correspondence. However, I doubt

that it is your intention to publish correspondence and therefore

I would wish your guidance on how to reply to these questions.

On which subject I enclose a letter which my lawyers sent to the

Parliamentary Committee on 14th October, which is clearly

relevant to your remit, however it be defined.

Yours sincerely

The Rt Hon Alex Salmond

Appendix 1

Dear

WhatsApp Messages between Mr Salmond and First Minister

Thank you for your email of 13th October.

These are the additional messages we referred to in our letter

of 27th November which were omitted from the First Minster’s

earlier submission. Apparently as a consequence of our

informing the Committee of this omission, the First Minister has

already read them out on live Sky News television in an

interview with Sophy Ridge on October 11th without seeking

our client’s permission to release his data. In these

circumstances he considers that it would be perverse for him to

object to them being seen and published by your Committee.

However, we make the assumption that you only intend to

publish material relevant to the Committee’s remit.

The message of 5th November 2017 is the First Minister

initiating contact over a Sky News press inquiry while the

message on 6th November was the First Minister wishing to

speak further after an approach on the same subject from the

[Redacted]

Permanent Secretary. These are at least arguably relevant to

the Inquiry and he is content that they are published.

The first two messages of 9th November concern the First

Minister’s objections to the launch of our clients TV Show that

day on RT (as confirmed by her on Sky News) and are

therefore not relevant to your enquiry and should not be

published.

However the third message of 9th November beginning ‘Ps’ is

a direct reference to her earlier messages of 5th November and

should be published.

Our client’s message to the First Minister of 10th November is a

continuation of our client’s disagreement with the First Minister

over the television show and a reference to the then bid for the

Scotsman newspaper. As such it should not be published.

In addition, in our letter of 27th September we raised the

question of the reasons for the redaction of the name of the

person who had relayed the message from the First Minister

that she wished to meet our client for a third time on this issue.

You explained that it was the First Minister had redacted this

information from our client’s message of 13th July 2018 at

11.01am.

Since it was our client’s message, we are aware of no legal

reason for this redaction; it seems highly relevant to your

deliberations and our client is content to see the message

published in full. Can you please clarify the reason for redaction

with the Scottish Government? Our client is content to provide a

copy of the unredacted message.

However, we will leave the final decision on publication to your

Committee. However we would ask that this information is

shared with Committee members.

As we previously noted for completeness our client has a

record of a missed call from the First Minister to our client at

13.05 on the 18th July.

Our client hopes that this is helpful.

Yours sincerely

David McKie

Partner

8. Mr Salmond to Mr Hamilton

6th October 2020

Mr James Hamilton

Independent Adviser on the Scottish Ministerial Code

6th October 2020

Dear Mr Hamilton,

Thank you for your letter of 8th September.

I do indeed have information which will be of assistance to your

enquiries and am happy to assist you if I can.

However I would like to accept your offer of clarification on your

request and ask first for answers to the following points;

Firstly, I am prepared to represent myself in presenting you with

evidence. I am a private individual and simply cannot afford to

hire further legal representation as my lawyers are fully

occupied dealing with the Scottish Parliamentary Inquiry. Vast

sums of public funds have already been expended by Scottish

Government officials in legal representation in this process. I

am also informed that other witnesses are relying on their

political party to finance their legal representation. I will

represent myself and am therefore in no position to accept

responsibility as to whether my submissions are in line with

legal requirements as you suggest in your letter. That will

require to be your responsibility and I will be grateful if you

could now confirm this.

Secondly, on a related point, the remit drawn by the Deputy

First Minister refers to the anonymity orders drawn up by the

‘court in the criminal proceedings’. I would draw your attention

to the rather more relevant ruling of Lord Woolman in the civil

proceedings of 8th October 2018. This was sought by my

counsel and as I recall the Scottish Government were not even

represented by counsel at that hearing. Also relevant would be

the interlocutor of Lord Pentland of January 8th 2019 after

concession of the Judicial Review, where certain Scottish

Government documents were reduced by the Court as the

product of an unlawful process. For ease of reference I have

copied you both of these court interlocutors. Please confirm that

you shall not be relying on, or accepting into evidence, said

unlawful documents as any part of your enquiries.

You may also be aware that my solicitors have been informed

by letter from the Crown Office that if they present or even

describe to the Parliamentary Committee information gained in

disclosure in the criminal proceedings they will be liable to

prosecution. I am happy to provide you with this letter if you

wish. Please confirm if this threat applies to your enquiry

because there are indeed relevant documents under this

restriction. However, given that much of this documentation was

obtained by Crown search warrant from the Scottish

Government it would be open for the Government to supply you

with it. Your difficulty is that you do not know what it is and I am

currently debarred from informing you.

Thirdly, I understand from the Parliamentary Committee

hearings in answer to a question from Ms Jackie Baillie that the

civil servant who has been allocated responsibility for leading

support for your enquiry is Mr James Hynd. However Mr Hynd

was himself deeply involved in the Scottish Government’s

unlawful complaints procedure. Indeed he claimed under oath

at both the Commission which was required as part of the

Judicial Review in December 2018 and in front of the

Parliamentary Committee last month to be the original author of

the policy. I do not dispute Mr Hynd’s personal integrity although

I note he was forced to write to the Committee to correct an

impression he had unwittingly given about me in his evidence.

However, please clarify his status and position in your enquiry

given his prior involvement in this matter.

Fourthly, the remit given to your investigation by the Deputy

First Minister lays a surprising stress on whether she interfered

in the Scottish Government investigation. It might even be

suspected that this remit has been set up as a straw man to

knock down. There is no general bar on Ministers intervening in

a civil service process of which I am aware and indeed there

are occasions when Ministers are actually required by the code

to intervene to correct civil service behaviour.

What I wish to know is whether matters which, by contrast, are

specified in the Ministerial code such as the primary

responsibility of not misleading Parliament (contrary to 1.3 (c) of

the code), such as the failure to act on legal advice suggesting

the Government was at risk of behaving unlawful (contrary to

2.30 of the code), and such as the Ministerial failure to ensure

civil servants gave truthful information to parliament (contrary to

1.3 (e) of the code) will have at least equal status in your

deliberations or are you confined to the political remit which you

have been set? If your enquiry has been confined by Ministers

then please tell me if you have the authority to expand that

remit unilaterally? If not, will you seek the authority of those in

the Scottish Government who set the remit to expand it into

these, and other, areas?

Finally since the Parliamentary Committee has demanded full

transparency and expressed an interest in your deliberations I

have copied them into this email.

As I am answering your enquires personally please direct all

future correspondence to me directly

at .

Yours faithfully

The Rt Hon Alex Salmond

[Redacted]



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