Proof Sturgeon 'lied' that Scottish prosecutors don't want you to see
The proof Sturgeon ‘lied’ that Scottish prosecutors don’t want you to see: Civil servants refuse to explain why they censored the most explosive 474 words of Alex Salmond’s testimony that could force SNP leader to resign
- MSPs rounded on Crown Office after it forced parliament to redact submission
- They called for the Lord Advocate to come before the parliament to explain why
- Mr Salmond was furious and pulled out of appearing before a Holyrood inquiry
- Meanwhile MSPs slammed the SNP as a ‘cesspit of vipers not fit for Government’
Nicola Sturgeon’s Scottish government is facing growing accusations of corruption today as civil servants refuse to explain why they censored the most explosive 474 words of Alex Salmond’s testimony that could force the SNP leader to resign.
Politicians said the separation of power between prosecutors, the civil service and the SNP had become ‘indistinguishable’ and Scotland’s public institutions were allowing themselves to be used for political purposes.
The fury is focused on a decision by the Scottish Parliament to redact Mr Salmond’s written testimony against Sturgeon after a request from prosecutors at the Crown Office – just a day before he was due to give evidence to an inquiry in person.
Now MSPs and Mr Salmond are calling for the Lord Advocate, the government’s chief legal officer, to appear before parliament to explain why the evidence that has the potential to damage Sturgeon has been censored – but were repeatedly refused.
Parliament chose to censor the most explosive 474 words of Salmond’s testimony which accuse the First Minister of lying to Parliament about her knowledge of an investigation into sexual assault allegations against Mr Salmond.
If she is proven to have lied she could be forced to resign, yet the censors left thousands of words of Mr Salmond’s testimony that do not implicate Ms Sturgeon untouched.
Mr Salmond was furious last night and pulled out of appearing before a Holyrood inquiry today because he says the curbs on his evidence would make it ‘impossible’ for him to address MSPs.
Meanwhile Tory MSP Miles Briggs slammed the SNP as a ‘cesspit of vipers not fit for Government’ while party leader Douglas Ross said: ‘The stench of a cover-up is overwhelming. The SNP Government and the Crown Office are shutting down scrutiny.’
There are currently two inquiries swirling in the Salmond/Sturgeon battle after he was cleared of 13 sexual assault accusations and his prosecutors were found to have been influenced by ‘political bias’
The first inquiry is into the Scottish government’s handling of the allegations against Mr Salmond, and another into whether Ms Sturgeon broke the ministerial code.
The first is an SNP-led Holyrood committee set up last year, which has already heard controversial evidence given by the current first minister’s husband and SNP chief executive Peter Murrell.
But the second inquiry, led by James Hamilton QC, is aimed at Ms Sturgeon and whether she broke the ministerial code by lying to parliament about when she heard of the allegations against Mr Salmond.
Politicians said the separation of power between prosecutors, the civil service and the SNP had become ‘indistinguishable’ and Scotland’s public institutions were allowing themselves to be used for political purposes. Pictured: Ms Sturgeon yesterday
The fury is focused on a decision by the Scottish Parliament to redact Mr Salmond’s written testimony against Sturgeon after a request from prosecutors at the Crown Office – just a day before he was due to give evidence to an inquiry in person. Pictured: Mr Salmond in March
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
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.
She told the Scottish parliament she first heard of the claims on April 2, 2018, but backed down later and admitted meeting Mr Salmond’s former chief of staff Geoff Aberdein on March 29 during which the topic came up.
The part of Mr Salmond’s testimony that has been censored explains how Ms Sturgeon met his chief of staff to discuss the sexual allegations four days earlier than she told Parliament she had.
Mr Salmond’s camp say this is evidence that Ms Sturgeon orchestrated the investigation into sexual assault allegations and subsequent prosecution to stop his political comeback.
When confronted with the discrepancies in her evidence, the SNP leader claimed she ‘forgot’ about the earlier meeting – despite it apparently being the first occasion on which she learned of serious sexual assault allegations about her political mentor.
Mr Salmond dismissed this claim as ‘untenable’ and has pointed out Mr Aberdein’s evidence – which has not been published – that the sexual assault claims were raised in detail with the first minister during their earlier meeting.
The ministerial code says ‘ministers who knowingly mislead parliament will be expected to offer their resignation to the first minister’, but Ms Sturgeon has repeatedly waved off accusations she did.
If the Hamilton inquiry – which has not announced when its findings will be released – concludes she did break the ministerial code, it would likely spell an end to Ms Sturgeon’s career and potentially torpedo the SNP in the May elections and its hopes for another Scottish independence referendum.
Two pieces of Mr Salmond’s evidence have struggled to get over the hurdles put in place by the Crown Office over claims they could be in contempt of court by jeopardising the identify of his sexual assault accusers.
One is his fourth submission to the committee probing the government’s handling of the allegations against him, which speaks of a ‘conspiracy’ against him in the SNP and accuses five people of leading a plot to orchestrate his political downfall and throw him in jail.
The other is his evidence submitted to the Hamilton inquiry which was first published two weeks ago on the Spectator’s web page but was only posted on the government’s website yesterday.
But following pressure from the Crown Office last night it was swiftly removed, heavily redacted – removing claims against Ms Sturgeon by Mr Salmond – then republished.
The public prosecution service – Scotland’s version of the CPS – came under immediate fire as politicians of all colours called on the Lord Advocate and senior officials to make an ‘urgent statement’ to parliament on why it had advised Holyrood to make redactions.
Scottish Conservative leader Mr Ross said: ‘The stench of a cover-up is overwhelming. The SNP Government and the Crown Office are shutting down scrutiny.
‘This is the most secretive, murky act yet from a ruling party of government that doesn’t respect transparency. The Scottish people and the Scottish parliament deserve far better than this.’
Scottish Labour interim leader Jackie Baillie, a member of the committee, said: ‘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.
‘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.’
The Scottish Parliament Corporate Body was forced to hold the emergency meeting early yesterday after the Crown Office raised concerns over Mr Salmond’s submission.
Following advice from officials, Holyrood bosses agreed to censor the document – removing five of the 33 sections, totalling nearly 500 words.
The 36-page submission was initially published online on Monday evening by the Scottish parliament after weeks of manoeuvring over the former SNP leader’s evidence.
It was removed in its entirety yesterday morning before being reissued with a series of redactions.
In a letter to Holyrood officials, Mr Salmond’s lawyers said that as a ‘substantial’ part of his evidence had been ‘deleted without reference to him’, there was now a ‘significant legal impediment to his oral evidence’.
What is the role of the Lord Advocate, who refused to explain why Alex Salmond’s evidence has been censored?
James Wolffe QC has been the Lord Advocate for Scotland – similar to the Attorney General in England – since June 2016.
He is the most senior Scottish law officer and is the head of the systems for the investigation and prosecution of crime and investigation of deaths.
But one of his other jobs is as the principal legal adviser to the Scottish Government – currently run by Nicola Sturgeon.
He attended the weekly Scottish Cabinet meetings until in 2007 Alex Salmond decided that Lord Advocate would no longer attend the Scottish Cabinet, stating he wished to ‘de-politicise’ the post.
He has to represented the Scottish Government in civil proceedings but also represent the public interest in a range of statutory and common law contexts.
The Edinburgh-based lawyer became an advocate in 1992 and was First Standing Junior Counsel to the Scottish Ministers from 2002 to 2007, the same year he was appointed Queen’s Counsel. From 2007 to 2010 he served as an Advocate Depute.
Called to the bar of England and Wales in 2013, Mr Wolffe was elected Dean of the Faculty of Advocates in 2014.
They added: ‘It is now clearly impossible for him to attend tomorrow in these circumstances, but he remains willing to attend on Friday.
‘He accepts that is entirely in the hands of the committee, to whom he has asked that we copy this correspondence.’
Mr Salmond’s evidence alleges there was a ‘deliberate, prolonged, malicious and concerted effort among a range of individuals within the Scottish Government and the SNP to damage my reputation, even to the extent of having me imprisoned’.
Among Mr Salmond’s evidence sent to the committee 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.
SNP Chief Executive, Peter Murrell arrives to give evidence to a Scottish Parliament committee at Holyrood in December
Liz Lloyd (left), 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. Right: 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
Sue Ruddick (pictured) was also 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.
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.
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.’
He also accused the Crown Office of ‘shielding some of the most powerful people in the country’.
In his submission to the Hamilton 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 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’.’
Mr Salmond’s submission came after he received letters from officials warning he could face prosecution if he shared or referenced materials he had obtained for his criminal trial and had hoped to make public.
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.
The Crown Office sparked a major backlash yesterday after it advised the parliament to remove or redact Mr Salmond’s evidence.
Officials raised ‘grave concerns’ there could be a breach of a court order related to Mr Salmond’s criminal trial last year that could lead to the identification of women who complained against him.
They said it would be up to a court to decide whether or not this was the case. But Holyrood bosses followed the advice and redacted Mr Salmond’s submission.
Five sections of the document have now been replaced with purple lines and ‘redacted’ printed on the pages. Other similar claims remain in the submission.
One of the paragraphs removed alleges Miss Sturgeon breached the ministerial code by making an ‘untrue’ statement in the Scottish parliament in 2019 – unrelated to the criminal trial.
Tory MP David Davis said: ‘Extraordinary behaviour by the Scottish Crown Office in redacting Alex Salmond’s evidence to the Holyrood Committee. The same evidence was put in the public domain by the judge ruling on the Spectator case last week.’
He added: ‘So it is not actually keeping anything private. The only logical explanation is that they are preventing the committee relying on that evidence in it’s final report. Why?’
Former leader of the Scottish Tories Jackson Carlaw wrote: ‘This isn’t about Sturgeon v Salmond anymore. This is about the institutions of Scottish democracy. The separation of power between the Crown Office, the First Minister & the Civil Service is now indistinguishable. How can public have confidence in the integrity of government?’
Conservative MSP for Glasgow Adam Tomkins put: ‘The history of parliaments in this country is that we stand up to the Crown. But not today. Today a parliament folded. That’s not a farce. It’s a tragedy. And it’s a shameful, historic error.’
Scottish Leader of Reform UK Michelle Ballantyne added: ‘It’s important to remember that this has never been about Salmond versus Sturgeon, it’s about discovering whether our public institutions have been used for political purposes and internal SNP battles. So far, it doesn’t look promising. Scotland deserves far better than this.’
Mr Salmond has now offered to appear at Holyrood on Friday after seeking legal advice and guidance on what he can speak about without facing the threat of prosecution.
The former first minister and Ms Sturgeon are the only two witnesses who have yet to appear before the Holyrood inquiry examining the Scottish Government’s botched probe into harassment complaints against the former First Minister.
He had the probe set aside after legally challenging the investigation. A court then ruled it had been unlawful and tainted by apparent bias.
Mr Salmond was awarded more than £512,000 of taxpayer cash in legal fees. The Holyrood committee will meet today to discuss what action to take next and whether they could meet on Friday to hear from Mr Salmond.
Sources claim he was initially told he could attend the parliament with special arrangements being made, as the building is currently closed on Fridays.
But this was later thrown into doubt by committee convener Linda Fabiani, and it is understood MSPs will today discuss whether they wish to hear from Mr Salmond.
If they vote against holding an additional meeting, he will consider holding a press conference.
A Scottish parliament spokesman said: ‘Mr Salmond has informed the committee that he will not be attending tomorrow’s meeting to give evidence.
‘The committee will instead meet in private to discuss the implications of Mr Salmond’s response and the next steps for its work.’
A spokesman for the Crown Office and Procurator Fiscal Service (COPFS) said: ‘We take seriously our responsibility to uphold the law and to protect the dignity and rights of all those who come into contact with COPFS.
‘Scotland’s prosecutors have acted independently and in the public interest at all times when considering matters related to this case.’
Alex Salmond’s submission to the Harassment Complaints Committee
Submission Alex Salmond
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
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
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
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
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.
In relation to Phase 1, I am asked for evidence regarding the development of the
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.
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
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
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
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
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
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
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,
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
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
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
, 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
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
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
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.
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
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
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
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
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
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
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.
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
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
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
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
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
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.
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
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.
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.
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.
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 policy and actions of the Permanent Secretary and the Government were accepted
as and then judged as ‘unlawful’, ‘procedurally unfair’ and ‘tainted by apparent
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
Date: August 27, 2018 at 7:46:13 AM GMT-5
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.
Director, Communications, Ministerial Support and Facilities
Sent from my iPad
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Submission by Alex Salmond – Phase 4 – Ministerial Code
Submission by Alex Salmond – Phase 4 – Ministerial
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
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
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
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
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
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
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
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
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
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
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
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
Our ref: CH/IC/0295/2018
Mr David McKie
Levy & McRae
70 Wellington Street
By email only:
Dated 28 May 2020
Dear Mr McKie
Re: Your Client – Mr A. Salmond/ Your Ref DMK/LL/STE039-0001
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
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.
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
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
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
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
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
concerns about the SG making a public statement about the outcome of
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
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
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
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
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.
Independent Adviser on the Scottish Ministerial Code
c/o Levy & McRae
70 Wellington St
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?
EMAIL EXCHANGES BETWEEN MR ALEX SALMOND AND
MR JAMES HAMILTON
1. Mr Salmond to Mr Hamilton
31st December 2020
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
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.
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.
3. Mr Hamilton to Mr Salmond
Dated 4th December 2020 but emailed on 7th December
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
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.
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
It would be disappointing if this is now being done by the
Deputy First Minister, by virtue of confining your terms of
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
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
Rt Hon Alex Salmond
5. Mr Hamilton to Mr Salmond
Dated 29th October 2020 but emailed on 16th November
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
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
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
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
I have set out various matters relevant to your questions in my
recent correspondence with the Parliamentary committee.
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.
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.
The Rt Hon Alex Salmond
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
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
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
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.
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
The Rt Hon Alex Salmond
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