Scottish Government response to harassment reviews

Background

The Scottish Government developed the ‘Handling of Harassment Complaints Involving Current or Former Ministers’ procedure (“the procedure”) in the context of the #metoo movement and a strong cross-party agreement that more needed to be done to tackle harassment in the workplace.

In developing the procedure, the Scottish Government drew upon legal and HR advice, and had a number of underpinning objectives:

• The procedure had to be lawful;
• It had to reflect best HR practice;
• It had to be fair and balance the interests of all parties involved; and
• It had to respect the responsibilities of the Permanent Secretary and the First Minister.

In creating a procedure of this sort, the Scottish Government was motivated by doing the right thing – creating a workplace and culture where harassment is not tolerated and where complaints are taken seriously. We welcome the Committee’s acknowledgement of this point.

Complaints were received which had to be taken seriously. The Scottish Government had a duty to investigate the complaints and it was right and proper to do so. Decisions were taken transparently, informed by professional advice, and made in good faith.

The Scottish Government has been clear throughout that the outcome of the judicial review arose from a collective Scottish Government failure and that actions have been and are being taken to learn lessons, in particular to revise the complaints procedure and to strengthen how documentation is stored and retrieved.

Review of the Scottish Government procedure for handling harassment complaints involving current or former Ministers

Following the Scottish Government’s concession of the judicial review court proceedings raised by the former First Minister Alex Salmond, the Permanent Secretary issued a public statement[1] on 8 January 2019 committing that the Scottish Government would learn lessons, and that she had commissioned an internal review of the application of the procedure. We confirmed the review would be externally led and would examine the first application of the procedure to ensure that lessons are captured and applied for any future complaints that may be brought forward.

The review was not progressed immediately to avoid creating any risk of prejudice to live criminal proceedings. Laura Dunlop QC was appointed to lead the review, with the following remit:

1. Draw out the lessons from the first application of the procedure as followed through to decision. In particular, this will include the application of paragraph 10, and provide advice on any changes required to strengthen the content and future operation of the procedure.
2. Identify how best to support complainers in future without undermining the integrity of the process.
3. Consider what further steps could be taken to improve the procedure to meet its intention, including maintaining the confidence of Scottish Government staff in the approach which will be taken to handling such issues in future.

Ms Dunlop’s report was published on 16 March 2021[2].

Report of the Independent Adviser on the Scottish Ministerial Code into the self‑referral by the First Minister

On 13 January 2019, the First Minister announced that she had referred herself to one or both of the Independent Advisers on the Ministerial Code in relation to the questions that had arisen about her contact with Mr Salmond during the Government’s investigation into the complaints that had been made against him. In order to avoid any risk of prejudice to the then ongoing criminal proceedings, the Scottish Government paused the First Minister’s self-referral.

Following the conclusion of the criminal proceedings on 23 March 2020, we were able to recommence the referral process and the remit for the referral was set out by the Deputy First Minister in a reply to a parliamentary question in the Scottish Parliament on 3 August 2020[3].

The investigation was led by James Hamilton, who is a standing member of the panel of independent advisers. Mr Hamilton is a former Director of Public Prosecutions in Ireland and has been an independent adviser since January 2013.

Mr Hamilton’s report was published on 22 March 2021[4].

The Committee on the Scottish Government Handling of Harassment Complaints

On 5 February 2019 the Scottish Parliament established the Committee on the Scottish Government Handling of Harassment Complaints. The remit of the Committee was agreed as follows:

To consider and report on the actions of the First Minister, Scottish Government officials and special advisers in dealing with complaints about Alex Salmond, former First Minister, considered under the Scottish Government’s “Handling of harassment complaints involving current or former Ministers” procedure and actions in relation to the Scottish Ministerial Code[5].

The work of the Committee was also paused in order to avoid a risk of prejudice to live criminal proceedings. At its meeting on 22 June 2020, the Committee members agreed the Committee’s approach to its inquiry[6] and published a written statement on handling of information and evidence[7].

Following its conclusion of consideration of information and evidence the Committee reported on 23 March 2021[8].

Footnotes