James Hamilton QC is engaged in a separate inquiry into the Civil Service Scandal. He has no limitations placed on him, and indeed, would not have taken on the role had their been constraints on getting to the truth. He is expected to publish his report by the end of the month, or very soon there after. Hamilton was Ireland’s former Director of Public Prosecutions, and is repected as a scrupulously honest straight talker.
It is a separate submission from the one Salmond supplied to the Holyrood Inquiry, an inquiry which now looks as much hobbled in what it can do to name the guilty and exonerate the innocent, as is Salmond in answering their questions.
The Holyrood Inquiry has since been cut some slack by Senior Judge Lady Dorrian, who modified her stricture to make plain it did not include other events unrelated to the Salmond case. The Holyrood Inquiry is not looking into the Salmond case, but rather the warped process that led to accusations that ran up over £1 million in legal costs paid by the taxpayer.
1. This is a submission to James Hamilton at his repeated request to assist in his examination of possible breaches of the Ministerial Code by the First Minister.
2. I have also shared this submission with the Parliamentary Committee as it is relevant to Phase Four of their Inquiry into complaints handling by Civil Servants, Government Ministers and Special Advisers.
3. The Whatsapp messages between myself and the First Minister were provided to the Parliamentary Committee by the First Minister and published by them. Therefore, I do not enclose them here, save for the inclusion of the message of 13th July 2018 in unredacted form referred to below. (Appendix A)
The Terms of Reference
4. Mr Hamilton 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 this submission.
The reason for my concern is 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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. It is on that basis I make this submission.
10. 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.
11. 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.
12. 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.
13. 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 Ministerial Code.
14. 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.
15. 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.
16. 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.
17. 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 Staff.
18. 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 [REDACTED] 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.
19. 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.
20. 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.
21. 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 complainers.
22. 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.
23. 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.
24. 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.
25. 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.
27. 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 Minister’s 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.
28. 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.
29. 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 lawfully.
30. 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.
31. Most seriously, Parliament has been repeatedly misled on a number of occasions about the nature of the meeting of 2nd April 2018.
32. 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 Code.
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.
33. 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.
34. The First Minister additionally informed Parliament (Official Report 10th January 2018) 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 20 and 27 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 Minister’s 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.
35. 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 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 offer further information on this submission.
Rt Hon Alex Salmond
31st December 2020
Mr Hamilton, as an advisor to the Scottish government on its ministerial code. Scottish political observers believe Nicola Sturgeon’s position could be become untenable if Mr Hamilton’s findings go against her.