THE Scottish Government’s flawed harassment policy that resulted in a £500,000 bill for the taxpayer still hasn’t been fixed, one of the country’s top civil servants has admitted.

Alex Salmond remains the only person to have been subjected to the procedure.

The investigation into him was set aside by judicial review in January last year, with a judge calling the process unlawful and “tainted by apparent bias”.

Scottish ministers were forced to concede the case, admitting it had breached its own rules by appointing Judith MacKinnon to conduct the investigation even though she had counselled the two civil servants who complained about Salmond.

The Scottish Government claimed the complaints were first made in January 2018, but bosses in the civil service were aware of the allegations from Miss A and Miss B in November 2017, two months before their formal complaints were lodged.

MacKinnon had "counselled" the two women at the same time as she had been copied into a series of draft versions of the new ministerial complaints code. 

Paragraph 10 of the the final code, says an investigating officer should have had “no prior involvement with any aspect of the matter being raised”.

MacKinnon was in front of the Holyrood inquiry into the botched probe on Tuesday. Labour’s Jackie Baillie asked the official if she’d read the document before taking on the role of investigating officer.

“Did you just simply not read paragraph 10 and understand what your responsibility therefore was? I mean,I genuinely find that hard to believe,” she said. 

MacKinnon replied: “I was very clear about my role and responsibility in relation to the procedure.” 

Baillie said: ”Sorry that doesn't answer my question. You quite rightly say you were looking at earlier iterations of the policy and that allowed you to be both involved at the beginning and also as the investigating officer.

"What I find hard to believe, as a senior HR professional, as you've demonstrated to us, that you didn't read the finished policy document where paragraph 10 makes clear that absolute separation of roles.

“I cannot believe you did not refer to that particularly in your role as investigating offers. Your defence is earlier iterations of the policy which was in draft form allowed you to do both.

"I think it’s straining the credibility of the committee to ask us to believe that as an HR professional that you didn't read paragraph 10 when the policy was completed. “

MacKinnon fired back: “I did read paragraph 10. What paragraph 10 doesn't make explicit is the separation of roles. I think that's open to interpretation and that's the challenge that we face.”

Lib Dem MSP Alex Cole-Hamilton asked if there had been any guidance produced since the judicial review, to make clear the different interpreation. 

He said: “It’s clear that the collapse of the judicial review hinged on your interpretation of paragraph 10 verses theirs. 

“That difference of interpretation costs the public taxpayer over £500000, but we've been told repeatedly in this inquiry that this procedure exists to this day. 

“Can you clarify to the committee that paragraph 10 has sufficient guidance behind it so that that difference of interpretation can't ever happen again?”

MacKinnon answered: “So, not yet, is the short answer. The Dunlop Review has been instigated to review the policy as it currently stands.”

“So the public purse is currently exposed to the same risk as it was back in 2018?” The Lib Dem asked. 

“We haven't used the policy again since and now it's under review,” MacKinnon replied. 

Later in the session, a second senior civil insisted she couldn’t remember the conversation between her and the Scottish Government’s permanent secretary that prompted a now infamous exchange about winning the war. 

On 8 January 2019, after ministers conceded the judicial review, Leslie Evans texted the Government’s head of HR, Barbara Allison, writing: “Battle maybe lost but not the war.”

Evans has said under oath that she was ”not referring to any individual when I sent that".

Salmond’s supporters believe the text is proof of a conspiracy against the former First Minister.

A few days later, the ex-SNP chief was charged with sexual assault.

He was subsequently cleared of all charges, 

Allison had initially denied receiving it. However, on Tuesday morning, she admitted that she had received it while on holiday. 

Allison told the committee she had asked the Crown Office for a copy of the material retrieved from her mobile phone in the context of the criminal trial, and had received it last Friday.

The exchange read:  "Thanks Barbara – battle maybe lost but not the war. Hope you are having lovely & well deserved break. L" 

Allison then responsed: "Thanks Leslie. It is lovely here. My mind and thoughts are with you all there tho. Best wishes. Bx"

During the evidence session in Holyrood on Tuesday, Allison said she couldn’t remember the initial text sent to Evans to elicit the response.

Baillie, asked Allison what she interpreted to be the battle and what she interpreted to be the war. 

“Obviously I didn't write the text but I think in the permanent secretaries earlier evidence, she talked about her continual focus on equality.”

“But in fairness, you don't disturb somebody on holiday in the Maldives to send a message about broader equality issues, it was directly linked to the collapse of the judicial review from the Scottish Government wasn't it?” a sceptical Baillie asked.

Allison replied: “It was at that time, yes. I assumed that it was connected with the judicial review”

“That's what I would assume too,” Baillie said. “What, therefore, would you assume was the war?”

She said her view was that “the permanent secretary has since she came in in 2015, you know made a concerted effort to ensure that people feel included and heard. I'm assuming it was broad context of trying to ensure that the women can come forward.”