Scottish Government response to harassment reviews

Separation of roles when dealing with complaints

Ms Dunlop recommended that anyone involved in any factual investigation of a complaint against a Minister should be free of prior involvement with any aspect of the matter being raised, and should have no close association with either party before or during the investigation. The Committee went further, noting that both the Investigating Officer and the person making the decision on the complaint should have had no prior involvement with the complaints. The Committee highlighted multiple roles of the Permanent Secretary in the development and the implementation of the procedure and suggested this could lead to a perception that there was not sufficient distance and independence in the decision making process. The proposal for an external and independent process will address this issue and allow roles to be clearly delineated.

Guidance will acknowledge that senior colleagues may be involved, making clear that anyone involved in the investigation or decision making should have no prior involvement with the matter being raised or close association with either party.

The Committee noted the role of line managers in provision of support. Whilst it is entirely appropriate and current good practice in the Scottish Government for line managers to support staff with complaints if that is what the complainer wishes, we must recognise that complainers may wish to seek support from someone outside of their management chain. Historical complaints may also mean that the current line manager has no basis for being informed about a complaint (both from the perspective of the confidentiality afforded to all parties and – as is noted elsewhere in Committee’s report – complainers may feel uncomfortable if they believe a number of people in an organisation are aware of their personal circumstances). The supporting guidance for the updated procedure will address the routes to raising a complaint, the support available, and the role of line managers.

Role of the Permanent Secretary

The Committee noted the two decision points for the Permanent Secretary under the current procedure, and stated that it does not believe it is appropriate for both decisions to rest with the Permanent Secretary. The Committee expressed sympathy with the idea that contact with complainers and former Ministers should be delegated to a senior member of staff who does not hold a formal role within the procedure.

The Permanent Secretary role has delegated responsibility for actions and decisions of the civil service serving the Government of the day, and within this overall delegated responsibility for discharging the employer duty of care towards all staff. However, the commitment to develop an external independent process of investigation and adjudication will address issues arising from the Permanent Secretary being required to undertake a range of roles in regard to the procedure.

The creation of the DG Corporate role

The Director General Organisational Development and Operations role held by Sarah Davidson at the time of the judicial review has since been altered to lead change in the Government, to reflect new responsibilities, and to avoid the situation highlighted by the Committee where the Permanent Secretary held “multiple roles” throughout the process.

Lesley Fraser was appointed to the new DG Corporate role in March 2021. DG Corporate is part of the Permanent Secretary’s Executive Team, allowing the Permanent Secretary to delegate responsibility of corporate matters to this Director General, with agreement from the First Minister, where necessary.

The aim of this new business structure is to improve organisational capability and capacity, overseeing core corporate services, including Ministerial support, internal and external communications, commercial and procurement strategy, legal services and financial and people management.

DG Corporate will also include the Propriety and Ethics function which is expected to be one of the routes of entry into making a formal complaint, and will also be the interface between the external, independent investigation and adjudication and the Scottish Government. A core team will be able to draw on staff with the necessary skills and who are not associated with the subject of the complaint. This function is expected to be fully established by autumn 2021.

Potential criminality

Ms Dunlop recommended that consideration should be given to whether to include a provision allowing a complainer’s wish to avoid police involvement to be respected in any policy about complaints against Ministers.

​The Committee invited the Scottish Government to reflect carefully on the process of making a referral to the police and the decision points leading up to a referral, and commented that more guidance could have been in place to support early identification of potential criminality and to support and manage complainers’ expectations around possible referrals to the police. The Committee also suggested that specialist support could have been useful to Ms A and Ms B, rather than such support being filtered through HR.

The Scottish Government will engage directly with and learn from the evidence provided by Ms A and Ms B and will ensure that guidance material will include direct access to specialist support. We will also consider what further assurance can be offered as part of the updated procedure.

Separation of roles: Scottish Government actions

We will:

• Address concerns about multiple roles in the investigation process through clearly delineated roles in the external, independent process for investigation and adjudication;
• Provide information on the routes to raising a complaint, the support available, and the role of line managers through supporting guidance; and
• Ensure complainers have direct access to specialist support where potential criminality is identified.