Nicola Sturgeon's chief of staff's submission to Alex Salmond inquiry

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Statement

The statement below responds to phase 1 (Complaints Development Procedure), and phase 3 (Judicial Review) of the committee’s inquiry which is where the committee has indicated it requires written evidence from me at this point. It also provides information to support the committee in understanding the role of a Special Adviser which may be of assistance in relation to the section on party political matters.

For the duration of my appointment as a Special Adviser I am a civil servant and the Civil Service code forms part of my contract of employment. In accordance with my obligations under the code, and as set out to the committee by the Scottish Government, I can provide factual information. I am not able to provide opinion or personal perspective.

READ: Peter Murrell's submission to the Alex Salmond inquiry in full

In addition, in common with all civil servants giving evidence to Parliament, I am giving evidence on behalf of ministers and am therefore bound by the Scottish Government’s decisions in relation to the application of legal professional privilege. Where I had no involvement in areas of interest to the committee or have no further information to offer than has already been provided by the Scottish Government I have sought to make that clear.

To assist the committee, in providing the evidence below, I have sought to provide information, not only in relation to the questions the committee has put to me, but also questions the committee has asked other Scottish Government witnesses and where I have information to offer, I have provided that information.

Where the committee asks whether information was shared with the SNP, I have taken that to refer to employees of Scottish National Party Headquarters or members of governing bodies of the SNP, outside of any interaction with ministers during the course of my role in government.

I have used my best endeavours to ensure this statement complies with the Committee’s Written statement on handling of information and evidence1 .

Complaints Development Procedure

Relevant material on my limited interaction with the development of the policy is set out in the Scottish Government response of 19th June2 , the associated Scottish Government chronology of events3 , the evidence given by James Hynd on 25th August and documents FP23/XX013 and XX015.

I was not present at the cabinet meeting of 31st October 2017 where the review of the Scottish Government’s policies and procedures to ensure that individuals who raised concerns would have confidence that those concerns would be investigated fully and addressed in an appropriate manner was commissioned.

READ: Nicola Sturgeon's full submission to the Alex Salmond inquiry

I had no contact with Nicola Richards in relation to the development of the complaints procedure. My limited engagement with James Hynd on this issue has been set out in his evidence. I have no recollection of discussing the development of the procedure with the Permanent Secretary or Barbara Allison, however we would be in touch or meet on a regular basis to discuss the ongoing business of government, so I cannot be absolute that it was not mentioned in passing.

The committee has been provided with an exchange of emails between myself and a member of the Permanent Secretary’s office on the 17th November FP23/XX013 and FP23/XX0154 . In considering those exchanges the committee should also be aware of the first draft of the policy by James Hynd on the 7th November 20175 [XX06], titled “Handling of sexual harassment complaints against former ministers” which was not shared with me and a subsequent draft shared with me on the 17th November 2017 titled “Handling of sexual harassment complaints involving current or former ministers”6 [FP23XX011]. I did not have sight of the draft policy prior to the 17th November 2017.

The inclusion of current ministers in the draft policy shared with me on the 17th November created an interaction with the ministerial code for which the First Minister is responsible. This was brought to my attention by a private secretary and we agreed that we should discuss the appropriate allocation of roles and responsibilities between a Permanent Secretary and a First Minister.

READ: John Swinney's full submission to the Alex Salmond inquiry

Given the interaction with the ministerial code, we also agreed that a note should be put forward that could be sent from the First Minister to the Permanent Secretary to provide clarity that consideration of a policy relating to ministers and former ministers was within the scope of the original cabinet commission.

Document Phase1FN23/XX013 is an email exchange showing the arrangements for the meeting at which this was discussed, a copy of the draft policy being provided to me on the 17th November 2017 and the first draft of the note referenced above being put forward to me by a private secretary7 . The copy of the draft policy contained in that email exchange was the first draft I had sight of. The initial draft note, contained in the email sent to me at 11.28 includes reference to the “conduct of current or former ministers”.

Document Phase1FN23/XX015 shows a further draft note being provided to me in an email of 1445. The email of 1519 shows the return of an amended copy of the note fleshed out to provide context. And an email of 1613 suggests an amendment to the note, building on the existing references to former ministers to ensure the draft note was in line with paragraph 16 of the 17th November version of the draft policy in order that in considering the note, it would be clear that the policy that had been drafted went back further than 2007.

I provided a copy of the note to the First Minister’s office for her consideration over the weekend to ensure work could continue.

In the discussion on the 17th November 2017 I was briefed on the proposed policy and the issues that needed resolved regarding the appropriate allocation of responsibilities in relation to a First Minister and a Permanent Secretary, particularly in relation to current ministers.

This was then discussed at a meeting on the 24th November 2017 to which myself, James Hynd, a member of the Permanent Secretary’s office and a member of the First Minister’s office were invited.

I can confirm that the account of the meeting on the 24th November 2017 given to the committee by Mr Hynd on 25th August 20208 matches my recollection. I believe a meeting had originally been scheduled for the 21st November 2017, but Mr Hynd had not been invited and I do not believe that the meeting took place.9 As set out by Mr Hynd my view in that meeting was that to enhance the independence of the policy no First Minister should be able to prevent a Permanent Secretary investigating a sexual harassment complaint made by one of their employees against a minister, if the Permanent Secretary judged there was something to investigate. This was because a Permanent Secretary has a duty of care to civil servants and I expected that to be the position the First Minister would think was appropriate. It was also my view that it would be essential that a First Minister is made aware of an investigation or allegation into a serving minister, in order to determine if, under the ministerial code, that minister could remain in post whilst an investigation was conducted.

The only other involvement I recall is a conversation with members of the SG communications team, prior to publication of the policy, where they informed me of the lines that would be deployed if the Scottish Government was ever asked if a complaint had been received.

For clarity given the committee has requested information in relation to communications with the SNP, I can confirm I did not discuss the procedure or share a copy of it with the SNP. I hold no documents on the development of the procedure.

I am aware that the committee has asked Mr Hynd, Ms Richards and the Permanent Secretary whether they had knowledge at this point of the complaints that came to be investigated under the procedure. I can confirm that I had no knowledge at this point of the incidents that were investigated under the procedure, and was not informed that two such individuals had raised concerns or made complaints. Other witnesses have been asked if they were aware of a query by Sky News in relation to Mr Salmond and Edinburgh airport. I was made aware on the evening of Saturday 4th November 2017 by a member of staff in an SNP parliamentary media office that they had received a query in relation to Mr Salmond and Edinburgh airport.

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They called to alert me to the possibility of such a story running, in case any ministers were on Sunday morning media. I informed the First Minister of the query and that I understood that Mr Salmond would not be responding that evening.

On Monday 6th November 2017 I was approached by several civil servants within the Scottish Government who raised concerns that Mr Salmond and representatives of Mr Salmond were reportedly contacting other civil servants directly to ask that they provide supportive statements in relation to the matters raised by Sky News to his legal representatives. The civil servants indicated that those being approached were finding this contact unwelcome. I was asked if I or other Special Advisers could ask Mr Salmond to go through appropriate channels rather than approach people direct, however I was informed shortly after receiving this request that the Permanent Secretary’s office had also been approached by staff and were taking their request forward, so made no approach to Mr Salmond.

Judicial Review

The committee has requested information in relation to the Judicial Review. As stated above, I am bound by the Scottish Government’s decisions in relation to the application of legal professional privilege on this issue.

I can, however, confirm to the committee that I had no involvement in the decision to settle the Judicial Review and no involvement in the cost of the settlement. I was not involved in any general discussions or meetings on either matter and had no discussion with either the Permanent Secretary or any Scottish Government minister on those decisions prior to them being taken.

The committee makes reference to the withholding of documents. I am not clear what documents the committee refers to, however if it is those provided by the Scottish Government and published on the Judicial Review section of the committee website10 , I had no awareness of those documents.

I became aware on the afternoon of the 14th December 2018 that an order had been granted in relation to documents. I was informed on the 23rd December 2018 of the existence of the document commission hearings part of the Judicial Review, but had no personal involvement and hold no information in relation to it.

I can also confirm that I hold no documents in relation to the Judicial Review.

The Scottish Government submission of 20th July 2020 confirms that “A range of Scottish Government officials from the Permanent Secretary’s office, the First Minister’s office, People Directorate, SGLD and Special Advisers were involved in aspects of this case, in line with their areas of responsibility within Government and knowledge about the particular issues being challenged in the judicial review proceedings.”11 In the case of my interactions this was often in relation to the handling of and preparation for media, public and parliamentary interest in the Judicial Review as well as to provide views and input on behalf of ministers who were respondents alongside the Permanent Secretary and the First Minister who had been named as an interested party in Mr Salmond’s petition12. The Permanent Secretary’s letter of 9th September13 provides links to published information regarding my attendance at 3 of the 17 Scottish Government meetings with counsel on the issue of the Judicial Review. I attended the meetings on the 25th October and the 2nd and 13th November 2018 in line with my role set out above.

Party Political Matters

In relation to Party Political Matters the Committee requests an explanation as to how I ensure separation is maintained between my role “as a Scottish Government employee, as governed by the Civil Service Code of Conduct, and my role working for the SNP”.

For clarity, I am not employed by the SNP.

As a Special Adviser my actions are governed by the Special Advisers Code and the Civil Service Code which form part of my contract of employment14. The Special Adviser’s Code sets out the types of political activities and party liaison in which special advisers can participate, for example attendance at party meetings, as well as the Civil Service functions which Special Advisers cannot carry out, for example authorising expenditure.

The committee requests information in relation to Scottish Government record keeping policy. This question should be directed to the appropriate part of the Scottish Government. The committee requests information in relation to SNP communications between office bearers and employees. I am not an office bearer or employee of the SNP. Questions regarding SNP communications policy should be addressed to the SNP.