Nicola Sturgeon did not breach ministerial code, James Hamilton finds

The former director of public prosecutions in the Republic of Ireland cleared the First Minister of breaking the rules which determines how ministers should operate.

Sturgeon had referred herself to the inquiry in January 2019 after Alex Salmond won his legal action against the government over its investigation into complaints made against him.

READ MORE: Key findings from the James Hamilton report on Nicola Sturgeon

Questions were raised about when she first learnt of the complaints into her predecessor.

She told parliament on January 8, 2019 that she was first informed of them by Salmond at a meeting at her home on April 2, 2018 but later Geoff Aberdein, Salmond's former chief of staff, said he told her at a meeting in her Holyrood office on March 29, 2018. Sturgeon later said she had forgotten about the earlier meeting which happened on a busy day in parliament and was brief.

She did not inform the civil service that she had been told of the complaints until early in June that year.

Hamilton concluded the delay did not amount to a breach: "In my opinion, therefore, neither the letter nor the spirit of paragraphs 4.22 and 4.23 of the Ministerial Code applied to the discussions between the First Minister and Mr Salmond. Consequently I do not consider that the First Minister acted in breach of the Code in not disclosing them prior to 5 June."

On the matter of what Sturgeon told Holyrood about when she heard of the complaints, Hamilton's report stated it is "regrettable that the First Minister's statement on 8 January 2019 did not include a reference to the meeting with Mr Aberdein on 29 March".

He added: "In my opinion, however her explanation for why she did not recall this meeting when giving her account to Parliament, while inevitably likely to be greeted with suspicion, even scepticism by some, is not impossible. What tilts the balance towards accepting the First Minister’s account for me is that I find it difficult to think of any convincing reason why if she had in fact recalled the meeting she would have deliberately concealed it while disclosing all the conversations she had had with Mr Salmond. Furthermore, given that the meeting was with Mr Aberdein who was expected to report it back to Mr Salmond it would have been naive to think that the meeting would remain secret given the First Minister’s poor relationship with Mr Salmond at that point."

Salmond has insisted Sturgeon misled parliament over not revealing the March 29 meeting and therefore broke the ministerial code.

But Hamilton did not take a decision on this matter. His report stated: "It is for the Scottish Parliament to decide whether they were in fact misled."

He also concluded that she did not breach the ministerial code by not disclosing the March 29, 2018 meeting with Aberdein to Holyrood on January 8, 2019 as he accepted it was "a genuine failure of recollection".

His report stated: "Although the First Minister’s statement was technically a correct statement of the occasions on which the she had met Mr Salmond nonetheless resulted in an incomplete narrative of events.

"For the reasons stated above I accept that this omission was the result of a genuine failure of recollection and was not deliberate. That failure did not therefore in my opinion amount to a breach of the Ministerial Code."

Hamilton also considered Salmond's claim that the First Minister breached the code by not conceding the case against him at an earlier date.

External counsel had concerns over the government's case at the end of October 2018, but did not withdraw from it until the following January.

Hamilton concludes this decision did not amount to a breach either.

He said: "Mr Salmond appears to be under the misapprehension that the Government is under a duty to withdraw a case if advised that there is less than an evens chance of winning.

"There is no such rule and the prediction of the outcome of cases is not an exact science. There is in my opinion no evidence whatsoever that the First Minister acted improperly or in breach of the Ministerial Code with respect to Mr Salmond’s petition. The evidence suggests that the key legal decisions were taken by the Law Officers."

Commenting upon receipt and publication of the independent report by Hamilton into her adherence to the Scottish Ministerial Code, First Minister Nicola Sturgeon said:

“I welcome the conclusions of James Hamilton’s independent investigation, which are comprehensive, evidence-based and unequivocal.

“Mr Hamilton has considered all of the allegations against me, and I am happy that his report’s findings clear me of any breach of the ministerial code.  

“I sought at every stage in this issue to act with integrity and in the public interest.  As I have previously made clear, I did not consider that I had broken the code, but these findings are official, definitive and independent adjudication of that.

“Prior to its publication, opposition politicians stressed the importance of respecting and accepting the outcome of Mr Hamilton’s independent inquiry, and I committed wholeheartedly to doing so. Now that he has reported, it is incumbent on them to do likewise.  

“Today I want, once again, to remind people that at the heart of this case were women who had the courage to come forward and complain. That they were let down by the Scottish Government’s handling of their complaints is not in dispute, and I again apologise to them for that.

“I was determined, however, at the time these complaints emerged that they should not be swept under the carpet, and that I would not intervene in the process.

“Had I done so, as requested by Alex Salmond, it would – as Mr Hamilton observes – ‘undoubtedly have been seen as a partisan and political interference’ which ‘would undoubtedly have undermined public confidence in the processes of government to a much greater extent than in fact eventually happened’.

“James Hamilton was appointed by Mr Salmond as an independent adviser on the Scottish Ministerial Code. He has previously investigated a Labour First Minister of Wales, and he has applied himself to this task with rigour and diligence.  Mr Hamilton is an internationally renowned legal professional with impeccable credentials and no one should seek to suggest or imply that he has acted anything other than independently and utterly without fear or favour.

“Now that this investigation is complete and its conclusions public, I will continue to devote all of my time and energy to leading Scotland, to helping the country through the pandemic, and to ensuring that as we rebuild from the hardships of the last twelve months, we do everything we can to protect jobs, support our health service and rebuild our communities for the better.”

Hamilton was asked to assess whether there had been any breach of the Code by the First Minister, the nature of any such breach and, if a breach had occurred, to advise on the appropriate remedy or sanction.

He looked at the following:

• the First Minister’s meeting with Geoff Aberdein on 29 March 2018, and the meetings/telephone calls with Salmond on 2 and 23 April, 7 June and 14 and 18 July 2018
• whether the First Minister misled Parliament about these meetings
• whether the First Minister attempted to influence the conduct of the investigation
• whether the First Minister broke the code by continuing with the judicial review.

On each point he found the First Minister had not breached the code, saying in his conclusions at para 18.2 of the report: “I am of the opinion that the First Minister did not breach the provisions of the Ministerial Code in respect of any of these matters.”

Hamilton’s report, formally commissioned by Deputy First Minister John Swinney, was delivered to the Scottish Government today.

In line with the First Minister’s commitment to Parliament, the report was published on the day of receipt.

The report was published in full, except for information that needs to be excluded to comply with court orders in force to protect the identity of complainers. In a covering note to the report Hamilton has acknowledged that redactions will be necessary.

Commenting, Swinney said: “I want to thank Mr Hamilton for his thorough and impartial assessment of the facts. 

"People can read the report for themselves, but the rigour and independence of his investigation is clear.

“This report is the formal outcome of the self-referral under the Ministerial Code made by the First Minister on 13 January 2019. I hope that everyone will now accept that Mr Hamilton’s conclusions are comprehensive and evidence-based.” 

Last week, leaks from the Holyrood inquiry into the matter, found that Sturgeon did mislead parliament, though did not say she did so "knowingly".

MSPs concluded the First Minister gave “an inaccurate account” of her actions and so misled the cross-party investigation.

Reports suggested the inquiry split down party lines 5-4 on the issue and decided Sturgeon broke the code on the balance of probabilities, with only SNP MSPs clearing their leader.

It is understood the inquiry’s 170-page report, which is due out tomorrow morning, found it did not have access to sufficient evidence to establish whether she had deliberately given "an inaccurate account". The intention to mislead would be the threshold for resignation under the ministerial code.

Last week a spokesman for the First Minister said she stood by her evidence to the inquiry.

He said: “The First Minister told the truth to the committee in eight hours of evidence, and stands by that evidence.

“It is clear from past public statements that opposition members of this committee had prejudged the First Minister at the outset of the inquiry and before hearing a word of her evidence, so this partisan and selective briefing – before the committee has actually published its final report – is hardly surprising.

“The question of the First Minister’s adherence to the ministerial code is being considered independently by James Hamilton, and we expect to receive and publish his report soon.”

READ MORE: James Hamilton QC: Who is the man who could decide Nicola Sturgeon's future?

According to a further leak of the Holyrood report on Friday MSPs also found it “hard to believe” Sturgeon’s claim to have had no knowledge of concerns about Salmond until 2017 when Sky News made an inquiry into an alleged incident at Edinburgh Airport.

Over the weekend allies of the First Minister rejected claims that Salmond’s alleged “impropriety” towards women was an open secret when he was first minister.

She told the inquiry earlier this month that she had no knowledge of Salmond’s alleged behaviour before 2017.

In evidence to the Holyrood inquiry Sturgeon said that she had “no general concerns at the time about Scottish government culture from 2008-14, and certainly not about sexual harassment”.

The women who made the allegations gave private evidence to the inquiry last week. They told of a demeaning atmosphere on the ministerial floor of the Scottish government while Salmond led the administration, with one saying it was “like the Wild West in there”, according to The Sunday Times.

MSPs were told that staff felt shamed because they were expected to tie Salmond’s shoelaces, straighten his tie, apply sanitiser to his hands, comb his hair and remove dandruff.

Michael Russell, president of the SNP, who has known Salmond for 40 years, said that he had not heard any allegations of “impropriety” against Salmond until they emerged in 2017.

An investigation against Salmond was launched in early 2018 when two female civil servants made complaints into Salmond's alleged behaviour during his time as first minister.

But Salmond launched a legal challenge to the Scottish Government's investigation.

He won his judicial review in January 2019, with the government conceding its investigation into the complaints against him was unlawful because it was “procedurally unfair” and “tainted by apparent bias” because its investigating officer had had prior contact with the two complainers - in breach of a newly-designed procedure.

Salmond was later charged with sexual offences and last year acquitted in the High Court in Edinburgh of all 13 charges against him.

The Holyrood committee was set up to find out what went wrong in the government's investigation which led to the former first minister being awarded more than £500,000 from the taxpayer in legal costs.

Last month the Scottish government handed the inquiry legal advice it had received from external council over the merits of its case.

It revealed the lawyers had "reservations" about the court battle with Salmond more than two months before it conceded to the former first minister.