Something is rotten in the state of Scotland, or Scottish Fish Fight

scotland

Blood will have blood.

Macbeth 3.4

Most readers of this blog may not pay terribly much attention to the intrigues of Scottish politics, but what is currently unfolding in Holyrood (Scotland’s national parliament) is nothing short of extraordinary.

So come sit by the fire dear listeners and I will tell you a tale of intrigue, conspiracy, incompetence, lies, abuse of power, suborning witnesses, cover ups, Ministers deliberately misleading parliament, refusing to comply with court orders… the list goes on and on… this story is like Queensland’s Fitzgerald Inquiry but on crack cocaine… hang on, this is Scotland, so let’s make that Heroin.

Oh, and for legal purposes all of the above and below should be considered “allegedly your honour” so that I don’t have Police Scotland turn up at my door and Marcus Meacham style charge me with hate crimes against Scottish Nationalists.

First, the undisputed facts.

In 2010, the Scottish Government was the first British Parliament to introduce a workplace bullying and harassment policy (Fairness at Work) that covered not only civil servants, but Ministers and Special Advisers as well.  The policy took 18 months to develop and had the support of the relevant unions and workplace representatives.  Alex Salmond, as the then First Minister of Scotland, was central to the policy’s development and implementation.

In late 2016, with the #metoo movement running at full pace, and with a new First Minister – Nicola Sturgeon – in the driving seat, the Scottish Civil Service started drafting a brand-new policy on Sexual Harassment.  However, this policy’s development did not take 18 months, it did not involve comprehensive consultation with the unions or with the workforce.  It was drafted in a matter of weeks and finally published in February 2017 on the Scottish Government’s intranet.  The major change to the original 2010 Fairness at Work policy was that it was to apply to Ministers and previous Ministers only, and that it had a bizarre hybrid approach that saw the civil service run a formal complaints process, make findings, and then hand the findings over to the relevant political party to determine the appropriate sanction.

Now we need to get in our time travel device and head back to January 2017, a month before the new policy is published.  Because it is then that two complainants come forward to make complaints of a sexual nature against Alex Salmond, the former First Minister, under the new policy that hadn’t yet been published… Make of that what you will.

In March 2017, Alex Salmond is advised that complaints have been made about his behaviour and that a formal internal inquiry would be established under the new policy.  He immediately retained counsel, who advised Salmond that the new policy was unlawful on about seven different legal fronts and that he had very good prospects in court of having the process declared illegal.

Now we get into disputed territory when it comes to events.

In late March, Salmond’s Chief of Staff met with Sturgeon and her CoS to discuss a pre-arranged meeting with Salmond on 2 April 2017, where Salmond was to discuss his concerns about the lawfulness of the new policy and complaints procedure.  Sturgeon denies this late March meeting happened, and that if it did happen it was “fleeting and inconsequential”.  Salmond’s CoS maintains it was neither, and that the complaints were discussed in detail and that one of the complainant’s names was furnished to him.

This point is of critical importance, as Sturgeon maintains that the 2 April meeting – conducted at her house in Glasgow – was solely to discuss SNP business.  Salmond claims the meeting discussed at length his concerns with the legality of the investigation process and that he shared his legal advice with the First Minister.

Sturgeon has maintained her version of events, and has said so in Parliament.  If Salmond is right, Sturgeon has misled Parliament, and has failed to correct the record for 18 months.

Why would Sturgeon lie, you ask?  Ah… this is where Salmond’s claims become truly interesting.  Salmond insists he approached the First Minister to intervene because he was of the view that the policy and investigation was unlawful and he wanted to avoid a public and expensive court case that would damage the SNP and the government he once led.  Such an intervention on the part of the First Minister would be entirely proper and in accordance with the Scottish Ministerial Code – Salmond should know, he introduced the code.

At that meeting, according to Salmond, Sturgeon agreed to intervene.  The detail of the conversation – apparently – was to work out the best way to raise the issue with her Permanent Secretary.  It wasn’t whether she would intervene, but how.  Two days later over WhatsApp, Sturgeon changes her position and says it would be inappropriate for her to intervene.

Sturgeon says none of this happened at the meeting, it was solely SNP business under discussion.  Think on that a moment.  The former First Minister has only days before been told he faces an investigation into allegations of a sexual nature, and he turns up at a meeting at his protégé’s house and is disciplined enough not to mention the upcoming investigation and his significant concerns about it.  Yeah…

Salmond then goes to great lengths to try and keep the matter quiet.  He offers to undergo a mediation process (all of this is backed up by correspondence).  The Permanent Secretary refuses.  Next, his legal team offers a private arbitration to settle the legal concerns, with Salmond agreeing to abide by the policy and investigation process if his legal team’s concerns are addressed.  Such an arbitration process would only have dealt with the concerns about the legality of the process and would not have touched on the complaints themselves.  The Permanent Secretary refuses.

All the while this is going on, the Investigating Officer is busily beavering away on her investigation.  Couple of fun points here that are not in contention.  First, the Investigating Officer knew both complainants, totally in contravention of the new policy, and secondly, she contacted both complainants privately to discuss their complaints outside of the formal investigation.

Salmond, now with his options shrinking day-by-day realises his only remaining course of action is to take the policy’s legality to the Court of Sessions for Judicial Review.  He even goes so far as to tell the First Minister and Permanent Secretary that he has no other option.

Around the same time, the report is finalised.  Salmond is told that the Government will put out a press release summarizing the findings.  Salmond threatens to seek an injunction, the Scottish Government then bins the release… but somehow… gosh… who knows how, the SNP mouthpiece “the Daily Record” receives a leaked version of the report.  Whether they got excerpts, or the full report remains a mystery.  That they got some or all of the report is clear, because the next day the Daily Record publishes a story that has copied elements of the report that only 23 other people have seen.

A brief leak inquiry determines that it is likely the leaker was “an employee of the Scottish Government.”  Now riddle me this batman?  Four groups of people had access to the report.  Salmond and his legal team, the complainants, senior civil servants and Sturgeon and her deputy’s offices.  There was absolutely no reason that either the accused or complainants would ever leak the report, and in 20 years of public service I have almost never seen a civil or public servant leak.  It is almost certain that the report was leaked to the Daily Record by one of the political offices in an effort to tarnish Salmond’s reputation.

But dear readers, I am only just getting started.

Salmond launches his Judicial Review in the Court of Sessions, the highest civil court in Scotland.  During discovery, the Scottish Government refuse to hand over huge swathes of material relevant to the case.  The Court has to undertake a bizarre Scottish legalism a “commission and diligence for the recovery of documents” to force the Scottish government to release the relevant documents.  Meantime, the government’s advocates are doing several things.  First, they are apologising to the Court of Sessions for their intransigent behaviour caused by their clients indefensible instructions.  Second, they are advising the Government to release the documents.  Third, they are advising the government that their case is exceptionally weak.  Ultimately, both advocates threaten resignation unless the Government releases the relevant evidence.  Ultimately, the Government bows down and releases some, not all, of the relevant documents.

Sturgeon’s office – having been told by their internal legal team that their case is hopeless – commissions external legal advice from a well-respected QC.  The content of that advice has never been made public, in spite of Holyrood passing two resolutions requiring the Minister to produce the advice.  However, it is safe to assume that the advice reiterated the views of the government’s own legal team.

Nevertheless, the Government continues to oppose the Judicial Review, and instead their focus shifts to a criminal trial.  Under Scots law, if a civil matter is being heard, and a criminal matter commences on the same topic, the civil matter is set aside.  With an untenable position in the Court of Sessions, the government now piles the pressure (this is conjecture, but is supported by the surrounding evidence) to bring forward criminal charges against Salmond.

This is another critical piece of the jigsaw.  If Sturgeon and her Ministers knowingly continued to draw out the civil case with the hope of it being overtaken by the criminal trial CONTRARY TO LEGAL ADVICE, this would be a serious breach of the Ministerial Code and to use that wonderful British phrase “They ought to seriously consider their positions.”

But it gets better and better… I told you, this makes Fitzgerald look like a children’s game.

The Court of Sessions delivers its verdict before the criminal trial can commence.  The judge is scathing of the Government in his decision.  He rules that the process is tainted by bias and that the investigation and the policy, is unlawful.  He doesn’t even need to look at the six other facets of Salmond’s concerns with the process.  Bias is enough to throw the whole case out.

In what must be a breath-taking display of arrogance, the Lord Advocate (the equivalent of the Attorney General and Solicitor General in a single office) issues a press release stating that the Court of Sessions Judge had rejected the six other grounds.

If the Court had such a poor view of Salmond’s position, then it is remarkable that the court awarded punitive costs to Salmond.  Of the £520,000 of his legal expenses, the court ordered the Scottish Government to pay £512,000.  That is nearly unheard of.

With the Civil Case thoroughly blown up for the Government, Whatsapp messages between senior advisers now claim (in publicly available messages) “Don’t worry, we’ll get him at the Criminal Trial.”  These people…

On to the police investigation… The government meets with Police Scotland and offers to hand over the internal report.  They also suggest that they will issue a statement on the report to the press.  The Police refuse to accept the report and state that it would contaminate their investigation, they also advise against the statement on the same grounds.

While the investigation is ongoing, Sturgeon’s husband and several other SNP apparatchiks are allegedly contacting female member of staff and civil servants known to be opponents of Salmond’s and are cajoling and intimidating further complainants to come forward.  Seven more complainants come forward.  The SNP go so far as to send a broadcast email to staff known to be anti-Salmond, asking them to come forward and make further complaints… during an ongoing police investigation.  The SNP claim that these emails were sent to uphold their duty of care to their staff.  I really like that excuse, it’s so ridiculous I can’t imagine how anyone could say that with a straight face.

You think I might be coming to the end of this sordid tale, but I am not.  During discovery, Salmond’s legal team secure a search warrant to secure additional documents.  The Scottish Government REFUSES to comply with the warrant.  Whole tranches of documents are denied to the defence.  Ultimately the court wheedles them out of the government – and these documents are the ones that really are at the nub of this story – and it becomes clear that the Scottish Government failed to disclose a lot of evidence during the Civil Case.

The Government seeks, and secures, orders prohibiting the publication of said documents. While we do not know exactly what is in these documents we can guess at their nature.  The period many of them were created in is October 2017 to January 2018.  We know this because of all the documents published, there are nearly none available during this time period.  This is at the time the Government knew its legal position on the Civil Case was hopeless.  It is suggested that to cover up their botched internal witch-hunt, they actively started interfering in the actions of the Crown Prosecution Office and Police Scotland to speed up the Criminal Trial.  If such allegations proved to be correct… and were supported by the suppressed documents… oh my.

Whatever was in those documents however, clearly had some influence over the Jury’s eventual decision; which was to acquit Salmond on all charges levelled against him.

A side note here.  I am not defending Salmond’s behaviour, he has openly admitted to what I would call boorish behaviour.  Was it inappropriate?  He admits as much.  Was it sexual harassment?  Well in his words “I leave that up to the two courts, two judges and one jury that these matters have been considered by.”  There is no doubt Alex Salmond is a flea, but he did not deserve what has taken place.

So… let’s take a breath here.  The Scottish Government dreams up a brand-new sexual harassment policy that deliberately targets “Former Ministers” and approves it in a matter of weeks.  Complainants then come forward before the policy is even published.  A slap dash investigation held by a person known to the complainants then breaks the brand-new policy by inappropriately conversing with them outside of the process.  The Scottish Government leak the final tainted report.  They go counter to all their legal advice to continue the Civil Case when it was clearly a lost cause.  They allegedly interfere in the police investigation and the prosecutorial service to try and cover over their monumental fuck up with the Civil Case.  They actively refuse to divulge relevant evidence, defying search warrants and court orders.

Still with me?

Under pressure from the opposition and cross bench parties, the Deputy First Minister grudgingly allows the establishment of a parliamentary inquiry to look into the catastrophic handling of the case.  But not before he nobbles the terms of reference in such a way that the committee cannot in all likelihood make any adverse findings.  They are being asked to explore whether Nicola Sturgeon interfered in the case (which she arguably should have as it was illegal and the Ministerial Code suggests it is her responsibility to step into such matters.)  The terms of reference should more properly have asked whether the Scottish Government acted unlawfully and improperly, etc etc.

A succession of Ministers and Civil Servants have appeared before the committee, giving implausible excuses, forgetting key events, pleading ignorance and demonstrating their own incompetence (my highlight, the Permanent Secretary to the First Minister denying the old ‘Fairness at work’ policy included harassment.)

It’s in the first dot point.  Umm… perhaps the Permanent Secretary should “consider her position?”

Almost every witness to the inquiry has had to issue corrective statements after their testimony.  That in itself should be setting off alarms.

Then Salmond agrees to address the Committee.  He prepares a submission and discusses with the Crown Prosecutors Office what can and cannot be divulged, as some details of the criminal trial may expose the identifies of the complainants.  Salmond’s legal team reach agreement on what is in and out of scope, and then the day before Salmond is due to give evidence, the CPO heavily redacts his statement and threatens prosecution if Salmond discusses the suppressed documents.

They then cite a law – introduced by Salmond himself that was designed to protect jurors from reprisals post trial – and claim that it makes Salmond’s discussing of certain documents furnished at the Criminal Trial an offence that they will prosecute.  Salmond delays his appearance, and then two days later, appears before the inquiry.

6 hours of evidence, and having watched almost all of it, it was a masterclass in political demolition.  While the SNP loving newspapers here are trying to downplay Salmond’s appearance – “Failed to deliver knock-out blow” – anyone with an open mind could not have listened to Salmond’s clearly articulated and evidence-backed description of a desperate, corrupt, malicious and… words really fail to explain just how horrific the SNP Government has behaved.

Let’s be generous to Sturgeon and the SNP and say that Salmond’s behaviour had been known about for years, and the SNP ignored it or swept it under the carpet.  Then #metoo comes along and suddenly the SNP realise they have a big problem.  So they construct a plan to get Salmond before #metoo catches up with them.  They then fuck the plan up massively, and then try to cover up their fuck ups, heaping abuse of power on top of incompetence.

That’s being generous.

Either way, screw Scottish independence.  Having seen the way the core institutions of Scottish law have been perverted contrary to any notion of the separation of powers, I’d be seriously contemplating reconsidering devolution.  Maybe rule from Westminster ain’t so bad after all with this one-party state at risk of becoming a failed state.

From my perspective, nothing short of the resignation of Sturgeon, the head of the Civil Service, the Lord Advocate, and the commencement of a Royal Commission into this stinking mess, can save Scotland’s dreams of independence.

The pure irony is blistering.  The man who delivered the Independence Referendum.  One of the loudest most convincing voices supporting an independent Scotland, may well become the catalyst for the quashing of any dream of independent Scotland for a generation or more.  No right Scot could possibly ignore the systematic degradation of core institutions and the total failure of leadership that this episode has demonstrated.

P.S.  I am not a party member of any party in the UK or Scotland, although I was once a member of the centre right Liberal Party in Australia.  I have no conflicts of interest.  I have been a public servant for 20 years in Australia and now happily reside in Scotland, but am disgusted by the poor governance, incompetent service delivery, poor holding to account of the government by the opposition, appalling lack of oversight besides the judiciary, failure to understand and enforce the separation of powers, and frankly just sick at the idea that these people want and believe in independence when they can’t even govern themselves.

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