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Scotland Act 1998: Scottish Civil Service

Volume 691: debated on Tuesday 16 March 2021

Motion made, and Question proposed, That this House do now adjourn.—(James Morris.)

For the past few months, Scotland has been transfixed by the Holyrood inquiry seeking the truth of what went wrong with the investigations into the former First Minister, Alex Salmond. The inquiry is investigating matters of the most serious kind—serious for the proper handling of sexual harassment complaints in Scotland; serious for the accountability of those in positions of power, including the Scottish Government’s permanent secretary and Lord Advocate; and serious, if the former First Minister’s claims hold any water, for the future of the present First Minister’s administration of Scotland.

These matters are unquestionably something that should properly be dealt with in Holyrood, but Holyrood has great difficulties exposing what went on. The inquiry has come up against endless impediments in its efforts to fulfil its remit. Those difficulties can be traced back to the Scotland Act 1998, in which the British Government of the day and this House decided to devolve power to the Scottish Parliament but failed to do it properly.

Those failures were broadly on three fronts. First, this House failed to guarantee separation of powers to Scotland. We have known for centuries that separation of powers is fundamental to a functioning democracy, yet in Scotland, the Lord Advocate both leads the prosecution service and serves in the Scottish Cabinet. That leaves him conflicted and compromised, with his Department’s independence undermined.

Secondly, the Scottish civil service was left as a part of the wider UK civil service. It therefore does not have its own mechanisms of control and accountability in place, but it is only loosely controlled by Whitehall, as we shall see in a moment. The result has been tolerance of failings that ordinarily would have led to resignations.

Thirdly and most importantly, Scottish parliamentarians were not given the same powers and privileges that Members of this House enjoy. That means that evidence relevant to the Holyrood inquiry can be freely discussed here today using parliamentary privilege, but if an MSP in Holyrood were to do the same, they would likely find themselves facing down prosecution.

Indeed, the Crown Office has been making such threats to Mr Salmond’s lawyers, various journalists and even the Holyrood inquiry itself. It made it clear that it would deem disclosure of evidence to a Committee of elected representatives to be a criminal offence. We have, in effect, given the Holyrood inquiry the right to summon evidence but not to use it.

It is because of these failings that I have brought this debate today. We need to reinforce the ability of the Scottish Parliament to hold its own Government to account. I am here to strengthen the Scottish Parliament, not to bury it.

A few weeks ago, I was passed some papers from an anonymous whistleblower. The information in those papers consisted of a download of text messages from the telephone of Sue Ruddick, the chief operating officer of the Scottish National party. This download—

On a point of order, Madam Deputy Speaker. Obviously, I appreciate the points that the right hon. Gentleman is making. However, there are court orders in place around the identities of individuals involved in that case. I do appreciate the points that he is making, but I would appreciate your guidance on how we can ensure that these court orders can in fact be adhered to in this place.

I thank the hon. Gentleman for his very serious point of order. I can assure him that I am listening very carefully to what the right hon. Member for Haltemprice and Howden (Mr Davis) is saying. I think that he, being a very experienced parliamentarian, understands the side of the line on which he must stay, as far as mentioning sensitive matters and matters connected with courts, and so on.

Thank you, Madam Deputy Speaker. I have, I think, brought whistleblower views to the attention of this House on about a dozen occasions in the last 20 or 30 years and, on every single occasion, I have protected the innocent people involved.

The download that I am talking about—Sue Ruddick’s telephone download—is held by the Scottish police, so the accuracy of this account can be checked if they need to. Alex Salmond has asserted that there has been, and I quote,

“a malicious and concerted attempt to….remove me from public life in Scotland”


“a range of individuals within the Scottish Government and the SNP”,

who set out to “damage” his

“reputation, even to the extent of having”

him “imprisoned.”

These are incredibly grave charges. The whistleblower clearly agrees with those charges. He or she starts their communication with the assertion that the evidence provided, and I quote,

“point to collusion, perjury, up to criminal conspiracy.”

Since I received the data, it looks as though the Committee has received at least some of it themselves, and some has also been put in the public domain by the hon. Member for East Lothian (Kenny MacAskill), a previous Justice Secretary in the Scottish Government. It was described anonymously by one of the Committee members as

“just private conversations that we had no business intruding on”.

Well, I will let the House be the judge of that.

No single sequence of texts is going to provide conclusive proof of what the whistleblower described as a “criminal conspiracy”, but it does show a very strong prima facie case, which demands further serious investigation, by which I mean, at the very least, a thorough review of all the emails and other electronic records for the relevant personnel at all relevant times.

For example, these texts show that there is a concerted effort by senior members of the SNP to encourage complaints. The messages suggest that SNP chief executive Peter Murrell co-ordinated Ruddick and Ian McCann, the SNP’s compliance officer, in the handling of specific complainants. On 28 September, a month after the police had started their investigation of the criminal case, McCann expressed great disappointment to Ruddick that someone who had promised to deliver five complainants to him by the end of that week had come up empty, or “overreached”, as he put it. One of the complainants said to Ruddick that she was

“feeling pressurised by the whole thing rather than supported”.

The day following the Scottish Government’s collapse in a judicial review in January 2019, Ruddick expressed to McCann the hope that one of the complainants would be

“sickened enough to get back in the game.”

Later that month, she confirmed to Murrell that the complainant was now “up for the fight” and

“keen to see him go to jail”.

Ruddick herself, in one of her texts, expressed nervousness about

“what happens when my name comes out as [redacted] fishing for others to come forward”.

Note, again, that this was after the criminal investigation into Salmond had commenced. This is improper, to say the least. Contact with, and influence of, potential witnesses is totally inappropriate once a criminal investigation is under way. That was known inside the SNP itself.

Text messages reveal that at an SNP national executive committee meeting early in January 2019, the hon. and learned Member for Edinburgh South West (Joanna Cherry) raised concerns among staff at Westminster that SNP headquarters were engaged in “suborning” of witnesses, while on 28 August 2018, a senior member of SNP staff in this building described in an email the SNP headquarters move against Salmond as a “witch-hunt”.

Shortly after charges were brought against Salmond, Peter Murrell sent messages saying that it was a

“good time to be pressurising”

detectives working on the case, and that the more fronts Salmond was having to “firefight” on,

“the better for all complainers.”

When the inquiry put those messages to Mr Murrell, he said that they were “quite out of character”. That is no defence even were it true, but, having seen the evidence of other messages, it seems to me that they were all too much in character for Mr Murrell. In a Committee evidence session on 8 December last year, Mr Murrell replied under questioning that there were no more messages of the type already in the public domain from January 2019.

That statement, delivered under oath, is hard to reconcile with the dozens of messages stretching over a period of months from September 2018 that I have now seen. There is more, but it would take the whole debate to read them out. The Committee needs to gain access to all this information. The anonymous Committee member who described them as “just private conversations” should understand that meddling in an ongoing police inquiry is at best improper, and at worst criminal, so it requires proper investigation. If the Committee does not feel it can do the job, perhaps it should ask the police to do it instead.

That brings us to the complaints process that Mr Salmond was subjected to. This process was new. Created in late 2017, it was different from existing Scottish Government complaints procedures in a number of ways, including being retrospective, lacking a mediation procedure and, extraordinarily, applying to previous Ministers but not to previous civil servants. The procedure was shared with the head of propriety and ethics in Whitehall, who expressed discomfort with the proposals and specifically asked whether they were only to apply to Ministers, not civil servants. As far as I can tell, she did not get a reply. It is hard to imagine a Department in Whitehall essentially ignoring concerns expressed by the head of propriety and ethics, which is one of the reasons that I want Whitehall to review the checks and balances built into the Scottish civil service.

The Scottish Government also ignored their own new policy and appointed an investigating officer who, it emerged, had had prior contact with the complainants, and not just any contact—a potential complainant was asked for their input on the draft procedure before they had formally made their complaint. They did not consult women’s advocacy groups, which would have been proper. They did consult trade unions, but not in a proper or timely fashion. Instead, input was sought from the very first complainant whose case would be investigated. Mr Salmond sought judicial review of the process, and in due course, this complaints procedure and process was judged by Lord Pentland in the highest civil court in Scotland to be “unlawful”, “unfair” and “tainted with apparent bias”—an astonishing judgment, backed up by the maximum possible punitive award of costs.

The judicial review of 2018 led to further extraordinary behaviour by the Scottish Government. In her evidence before the Holyrood inquiry, the First Minister of Scotland, Nicola Sturgeon, said that her Government’s external counsel were “confident” at the outset of the civil case that they would be successful. That is a significant mischaracterisation of the advice. The Government’s external counsel had identified a central vulnerability in the Scottish Government’s case. The complaints procedure under which Salmond was investigated had a real risk of being found to be unfair. Counsel stated:

“the vulnerability arises from the Procedure itself, and not from its implementation in this particular case.”

We now know that counsel came to that conclusion without being given the full facts of the case—facts that, in due course, took it from being an arguable case to a completely unarguable one.

External counsel Roddy Dunlop QC gave that first assessment of their chances in late September. By the end of October, he is clearly worried that the Government had not disclosed important facts about their operation of the process and says that at that point:

“it makes little sense to continue to defend the indefensible.”

Within a few days, he is advising that the “least worst” option is to concede the case. By 14 December, the obvious failure of the Government to meet their duty of candour leads to a commission and diligence committee being appointed to establish the real facts.

On 19 December, after the first meeting of that commission, the Government’s external counsel tells the Government:

“With regret, our dismay at this case deepens even further...Suffice to say that we have each experienced extreme professional embarrassment as a result of assurances which we have given, both to our opponents and the court, which assurances have been given on instruction, turning out to be false as a result of the revelation of further documents.”

The Scottish Government pressed on despite the counsel’s continued concerns about their “untenable position”. Most remarkably, the counsel told the Scottish Government that they were “personally horrified”, and that they could

“no longer rest on pleadings that they knew to be untrue.”

The defence had collapsed because of the Government’s lack of candour. Mr Salmond was very fortunate that the Government’s counsel, Mr Roddy Dunlop, now Scotland’s leading QC, behaved with impeccable honour and honesty throughout. Let us be clear: this is not just a case of a Government who failed to provide information because they could not manage their own filing systems. This was a Government who actively withheld important, relevant information. In one case, a critically relevant email was actively removed from an information bundle that was going to the court and that had already been approved by the Government counsel. I do not know who took that email out—I have it here. I do not know who gave the instruction, but in my view the removal of that document would be a summary dismissal offence and possibly a criminal offence. At the very least, it would be a contempt of court. Yet over his three evidence sessions, the Lord Advocate, the Chief Law Officer of Scotland, did not see fit to mention this crucial incident to a parliamentary Committee trying to get to the truth. It came to light just 10 days ago, when the Government were forced to publish their legal advice.

It was only in January 2019, after months of increasingly damning advice, that the Scottish Government faced the inevitable and conceded the judicial review. Costs were awarded against the Scottish Government at a punitive level reserved for defences conducted “incompetently or unreasonably”. The Scottish public will now pay the bill for their Government’s dogged pursuit of a doomed case.

More than that, the Scottish Government behaved in a way that was misleading to the court in a case that had serious implications for the criminal case that was to follow. The charges in that case were very serious. Had Mr Salmond been guilty of them, he would, quite rightly, have gone to prison, and his reputation would have been destroyed forever. Yet the Government were willing to play fast and loose with the facts in a way that, if they had succeeded, would have jeopardised the whole process of justice. For me, that is even bigger than the grotesque waste of £1 million. As it was, of course, he was exonerated on all charges by a predominantly female jury in a criminal court presided over by a female judge.

The Scottish Government had committed abuses of process in the initial investigation. They had failed to live up to their duty of candour in court with an indefensible case. At this point, we might have expected some contrition. Instead, the Scottish Government have now set their sights on impeding the Committee tasked with investigating the whole affair. The Members of the Holyrood inquiry are valiantly struggling to do their job, or at least some of them are, but time and again they have been frustrated. The inquiry has had to cope with evasiveness from the Scottish Government and the constant threat of legal action by the Crown Office, the Scottish equivalent of our Crown Prosecution Service.

First, the Crown Office intervened by barring the publication of the evidence of Geoff Aberdein, Mr Salmond’s former chief of staff. This evidence is critical in determining whether Nicola Sturgeon breached the ministerial code. It is clearly in the public interest to see this evidence. However, it is not allowed to be published, so I have a suggestion for the Committee. I have it on good authority that there exists from 6 February 2018 an exchange of messages between civil servants Judith McKinnon and Barbara Allison suggesting that the First Minister’s chief of staff is interfering in the complaints process against Alex Salmond. The investigating officer complained, “Liz interference v. bad”. I assume that that means very bad. If true, this suggests that the chief of staff had knowledge of the Salmond case in February, not in April, as she has claimed on oath. The First Minister also tied herself to that April date in both parliamentary and legal statements. She was, of course, aware earlier than that. The question is just how aware and how much earlier.

Secondly, the Crown Office intervened to see that the evidence of the former First Minister was redacted, supposedly to protect the identity of complainants, which is the point that the hon. Member for Midlothian (Owen Thompson) made quite properly earlier. Again, that redacted evidence focused on whether or not the First Minister breached the ministerial code, but The Spectator magazine had already published online Mr Salmond’s entire evidence with only a single paragraph redaction.

When The Spectator went to court to secure the publication of that evidence, the Crown Office made no objection whatsoever to the paragraphs that it bullied the Holyrood inquiry to redact. That leaves an absurd situation where the inquiry cannot speak about evidence that is freely available to anyone with an internet connection. The redactions are therefore clearly not designed to protect the complainants; they are designed to protect the First Minister from accountability to the inquiry.

Thirdly, the Scottish Government withheld the damning legal advice given in the civil case. It was only with the threat of a no confidence vote in the Deputy First Minister that the Committee could see part, and I emphasise part, of that advice. However, what we do know is that across November and December 2018 there were a series of meetings where it was decided to persist with the judicial review. That was against clear advice from counsel.

Rather extraordinarily, those meetings appear to have been largely unminuted. I recommend that they ask for the junior counsel’s notes. It was only at the last possible minute that the Government conceded the case, and only after counsel had threatened to resign. The First Minister told the Committee:

“I am not aware that they threatened to resign”,

but she will have seen a report that clearly states that counsel

“in light of their professional duties”

and their view of the case

“will require to withdraw from acting on January 3”.

Fourthly, the Scottish Government have repeatedly denied the Committee relevant evidence for what they claim to be legal reasons. That position is nonsensical. Of course there should be protections over sensitive material exposed in criminal trials—we agree on that—but those protections should not prevent a parliamentary committee from doing its job of holding Government to account.

Together, those form a litany of acts that repeatedly frustrated the Committee and denied the public full transparency and accountability. They fit squarely into a pattern of evasiveness and abuse of process that the Scottish Government have woven from the start. As I said in opening, the proper place for these matters to be determined is Holyrood. It would be eminently preferable for MSPs to be exposing any relevant evidence, but given the British Government’s failure in 1998 to give sufficient power to the Scottish Parliament, and given that the Scottish Parliament derives its authority from this House, certain evidence must now enter the public domain here.

The Holyrood inquiry has exposed some critical failings at the heart of the Scottish Government. They failed with the complaints process, they failed to heed legal advice, and they failed to honour commitments to ensure a transparent parliamentary review, but perhaps more worryingly the inquiry has revealed the limits of what the Scottish Parliament can expose. There is a deficit of power, and with it comes a deficit of accountability.

At the very least, I ask the Minister to consider an amendment to the 1998 Act to deliver separation of powers to Scotland—something that I believe a previous Justice Minister, the hon. Member for East Lothian, has written to the Justice Committee about already—to strengthen the civil service, and to reinforce the powers of the Scottish Parliament, correcting the fundamental power imbalance between the Executive and the legislature in Scotland. Let us give the Scottish Parliament the power to do the job.

May I start with the customary congratulations to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on securing this timely debate? He has a long and distinguished record of shining a light on matters of probity and accountability in public life. I should note that he does that against Governments of all political colours and is not discriminatory in his desire to see the truth and accountability.

My right hon. Friend has raised important questions tonight, but I must make it clear from the outset that it is not appropriate for me as a Minister to comment on the specifics of the various inquiries to which he referred that have not yet concluded, or on the information that he has put before the House tonight. I am sure, though, that those matters will be of considerable interest and widely debated elsewhere. I hope my right hon. Friend understands why I have to limit my comments to some of the general procedural and structural issues that he raised in his speech.

I do not have a huge amount of time, so I will try to cover three broad issues that my right hon. Friend raised: first, the privilege and powers of MSPs to obtain and discuss evidence, compared with the rights we have in this House to hold the Executive to account; secondly, the dual role of the Lord Advocate as both Scottish Government legal adviser and head of the Crown Office and Procurator Fiscal Service; and thirdly, a more general point on the lines of accountability in the Scottish civil service in Scotland.

Let me take each issue in turn. In this House, matters of parliamentary privilege are regulated by Parliament alone. Parliament holds sole jurisdiction—known as exclusive cognisance—over all matters that are subject to parliamentary privilege. That principle underpins all privilege, with article 9 of the Bill of Rights 1689 being the most important statutory expression. It says that the

“freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

In comparison, Members of the Scottish Parliament are protected against defamation as set out in section 41 of the Scotland Act 1998 but are not covered by article 9 of the Bill of Rights, so they have fewer protections. It is within the gift of the Scottish Parliament to amend the situation if it so wishes. As my right hon. Friend will know, there are Scottish Parliament elections in a couple of months’ time; the new Parliament can explore this matter, should it wish.

The second point is on the dual role of the Lord Advocate, who is the Scottish Government’s most senior Law Officer and principal legal adviser. Although not a member of the Scottish Government Cabinet, he or she may attend Cabinet in that capacity, and they represent the Government in civil proceedings. Given the inclusion in the 1998 Act of the role of the Lord Advocate, any formal separation of their responsibilities would require legislation in Westminster.

I note that my right hon. Friend referred to the fact that the hon. Member for East Lothian (Kenny MacAskill) has asked the Justice Committee of this House to consider the matter. The dual role is historical—it precedes the creation of the Scottish Parliament—and I imagine that unpicking the different roles would entail quite a complex debate, but that does not mean that it should not be considered. As I say, I mention that in a general way, not in relation to the matters of the specific case to which my right hon. Friend referred.

The third point I wish to touch on briefly in the two or three minutes I have left relates to the civil service in Scotland. My right hon. Friend is correct to point out that under devolution the civil service in Scotland is a reserved matter. The Constitutional Reform and Governance Act 2010 provides a statutory basis for the civil service code. This includes provision for the publication of a separate code of conduct covering civil servants who serve the Scottish or Welsh Governments. The Northern Ireland civil service is a separate organisation, but shares the same culture and values as set out in the civil service code. So although civil servants working to different Administrations are accountable to their own Ministers—in the case of Scotland they are accountable to Scottish Government Ministers, who are in turn accountable to the Scottish Parliament—with their own political priorities and mandates, the core values of the civil service support civil servants working across the UK.

The civil service has a number of safeguards in place to make sure that civil servants are able to raise concerns if they feel they are being required to act in a way that conflicts with the code and its values. Departments and agencies have a duty to make their employees aware of the code and its values. If a civil servant believes they are being required to act in a way that conflicts with the code or becomes aware of actions by others that they believe conflict with the code, their Department or agency must consider this concern and make sure they are not penalised for raising it. They can raise their concerns with someone in their line management chain or with nominated officers within their Department. If a civil servant has raised a matter in line with the relevant procedures and does not believe they have received a reasonable response, they can report the matter to the Civil Service Commission. It is independent of Government and the civil service. It is established by statute to provide assurance that civil servants are selected on merit and help to safeguard an impartial civil service.

I hope that these background points are helpful to my right hon. Friend and to the House in understanding the context in which he raised his important points. He has raised some serious questions. I am sure they will be widely debated in the weeks and months ahead, but for now I congratulate him on securing this important debate.

Question put and agreed to.

House adjourned.