Draft harassment policy sent to woman who complained about Alex Salmond

Nicola Richards, the government’s Director of People, said sharing the information was designed to get the input of those with a “lived experience”.

The civil servant was giving evidence to the committee on the Scottish Government’s Handling of Harassment Complaints which was set up in wake of the fall-out from the Salmond affair.

The government launched a probe into sexual misconduct claims made against the ex-SNP leader in 2018.

However, the former First Minister had the exercise set aside in a judicial review at the Court of Session, with the Scottish Government forced to admit it had acted unlawfully. 

The collapse of the Government’s case in January 2019 left taxpayers with a £500,000 legal bill.

Judge Lord Pentland subsequently said that the government’s actions had been “procedurally unfair” and had “tainted with apparent bias”.

That tainting was in part because of Richards’ decision to appoint civil servant Judith Mackinnon to lead the independent investigation - despite her having been in prior contact with the two women who went on to accuse Salmond.

Committee convener Linda Fabiani asked the HR boss why the draft policy  "wasn’t shared with any other members of staff who had raised concerns about bullying or harassment who had raised concerns before to see whether this was an improvement to the process they went through or whether it wouldn’t have made a difference.”

Richards said because “very, very few” people had raised concerns about ministers, there wasn’t a “wide staff group” with the relevant lived experience.

She said the purpose of sharing the draft policy was because the government was, "trying to establish, in terms of our learning as an organisation, whether this would have made any difference to them at the time, would it have made it more possible to raise issues about a first minister or former First Minister?

"It was done so that if they decided to proceed to formal complaint, they had an awareness of the policy likely to be applied."

As well as sending the draft policy to one woman, Richards said she had had a hard copy of it when she spoke to another woman - but that they "did not come forward with a complaint".

Richards also admitted to disclosing to one of the complainants that MacKinnon would “likely” lead the investigation. 

Last week, the Government’s top official, the Permanent Secretary Leslie Evans, appeared at the inquiry and apologised “unreservedly” for the “procedural failure” involved.

She said lessons had already been learned.

The SNP MSP Angela Constance asked Richards: “So what have you learned?”

The civil servant joked: “A lot. Get another job. That kind of thing.”
She added: “It’s been a pretty exceptional period.

“I think that I have learned that whilst you can be fairly clear of all of the ground that you’re standing on in terms of the advice and the legal position, that there are times when you may have to step very, very carefully in the way in which things are applied if that is going to meet some of the very significant tests that might be placed upon it.

“I think it would be very challenging for any workplace policy to withstand the kind of scrutiny and test that this policy has been through.”

Earlier, after questioning from Lib Dem MSP Alex Cole-Hamilton, James Hynd the head of the Cabinet, Parliament and Governance Division within the Scottish Government, told the committee "things were said" about the former first minister's behaviour.

"Whether they were true or not, I have no idea."

Hynd said he did did not raise this with either ministers or Scottish Government special advisers, saying: "Scuttlebutt and rumour are hardly things to start raising formally."

READ MORE: Alex Salmond 'to sue BBC' over documentary on sexual assault trial

He told the committee he had drawn up the policy for complaints against former ministers, saying there had been a “gap” in procedures for dealing with such allegations.

“There was nothing about former ministers,” he said.

“That was the gap I identified and it was my decision in terms of taking work forward on the development of procedure.”

But he said he was effectively “starting from scratch” in drawing up the procedure, saying no similar policy was in place at a UK level.

He said it was “not a straightforward thing to do” but was the “right thing to do”.

Hynd also insisted it was “entirely legitimate” for Nicola Sturgeon’s chief of staff, Liz Lloyd,to be involved when the policy was being drawn up.

He told the committee there had been “a couple of occasions when the chief of staff was copied into emails and commented on them”.

Hynd explained the policy “directly engages” with the First Minister’s responsibilities under the Scottish ministerial code, and it would be “entirely legitimate for the chief of staff to become engaged with that”.

He was also quizzed over missing documents. 

Labour MSP Jackie Baillie asked Hynd about a memorandum suggesting that complaints against former ministers should be investigated independently.

She said: “My understanding is you agreed with that. Why didn’t it ever happen?”
Hynds  said he was not sure that he did. 

Baillie then told the mandarin: “Because my understanding is there are further emails from you agreeing with that proposition that the committee don’t have.

“You might want to go back and look and perhaps furnish the committee with those emails?”

Baillie added: “Well, let me pose the question to you. Did you think that independent investigation was a useful thing to have of former ministers?”

She then pointed out that Hynds had suggested "three names of people, independent people, who could provide advice?”

Hynd replied: “Oh yes.”

Baillie said: “The committee doesn’t have that unfortunately.”

Hynd said: “They were Scottish Government civil servants. They were not independent third parties to government.

“Where I had taken the procedure was the investigation would be done by a Scottish Government official unconnected to the matter being investigated, and I offered some potential names of who those individuals might be, but they were not external to government.”

Fabiani also asked about the “missing documents”.

She said: “There’s obviously been a lot of key meetings where policy development changed as a result of comments. Are you aware of additional records that have not been provided to this committee?”

Hynd replied: “Well, clearly there is one we have identified there. Are there others? I’m very happy to go back and have a look.”

He said he felt the files provided covered all the “material points”

During her evidence, Richards also revealed a serving SNP minister was currently the subject of the Government’s 2010 Fairness at Work process, which deals with bullying and harassment.

She said: “We have had under the ministerial process, we have handled two issues under the Fairness at Work process involving ministers, involving current ministers.

“One of those was resolved at the informal stage and that occurred at the early part of 2017, and there is another complaint that is still in progress.

“I won’t go into further detail about that one, but it’s still at the informal stage.”