Scottish Government's Handling Of Salmond Complaints Unlawful, Court Rules

8 January 2019, 12:34 | Updated: 8 January 2019, 12:36

The Scottish Government's handling of sexual misconduct allegations against former first minister Alex Salmond was unlawful, Scotland's highest civil court has ruled.

At a hearing in the Court of Session in Edinburgh, Judge Lord Pentland said the decisions were "unlawful in respect that they were procedurally unfair and that they were tainted with apparent bias".

He spoke out after the court heard that the person who investigated the complaints of sexual misconduct - which are strongly denied by Mr Salmond - had involvement with the complainers prior to being appointed investigating officer.

Scotland's most senior civil servant, Permanent Secretary Leslie Evans, said an internal review would be carried out by the Scottish Government.

She said: "The single procedural flaw which led to this decision is deeply regrettable. In particular, I regret the distress it will cause to the two women who raised the complaints."

Ms Evans stated: "The Scottish Government has acted in good faith at all times and will continue to do so. It was right and proper that these complaints were investigated and I stand by the decision to carry out that investigation.

"It is also important to note that the procedural flaw in the investigation does not have implications, one way or the other, for the substance of the complaints or the credibility of the complainers.

"The Judicial Review was never about the substance of the complaints, but about the process that took place to investigate those complaints."

As a result she said it was open to the Scottish Government to re-investigate the complaints, adding that "subject to the views of the complainants, it would be our intention to consider this".

But Ms Evans said this would "only be once ongoing police inquiries have concluded".

Scotland's most senior civil servant, Permanent Secretary Leslie Evans, said afterwards that the lawyers for both sides had "informed the Court of Session that his action has been settled and the court has approved that settlement".

And she accepted that the Scottish Government's investigation of two complaints made against the former first minister was "procedurally flawed".

Contact between the investigating officer and the two complainers around the time the allegations were made in January 2018 could have created an "impression of partiality," Ms Evans conceded.

She stated: "There is nothing to suggest that the investigating officer did not conduct their duties in an impartial way. Unfortunately, the interactions with the complainants in advance of the complaints being made meant that the process was flawed, however impartially and fairly the investigating officer conducted the investigation."

Ms Evans stressed: "The Scottish Government has acted in good faith at all times and will continue to do so. It was right and proper that these complaints were investigated and I stand by the decision to carry out that investigation.

"It is also important to note that the procedural flaw in the investigation does not have implications, one way or the other, for the substance of the complaints or the credibility of the complainers. The Judicial Review was never about the substance of the complaints, but about the process that took place to investigate those complaints."

As a result she said it was open to the Scottish Government to re-investigate the complaints, adding that "subject to the views of the complainants, it would be our intention to consider this".

But Ms Evans said this would "only be once ongoing police inquiries have concluded".

Ms Evans said an internal review would be carried out by the Government, and stressed: "We shall learn and apply the lessons of this case to any future complaint addressed under our internal procedure."

She stated: "My priority remains the duty of care to my staff, including anyone in the organisation who brings forward any concerns about inappropriate conduct, regardless of the identity or seniority of the individual complained about.

"Finally I would reiterate that the single procedural flaw which led to this decision is deeply regrettable. In particular, I regret the distress it will cause to the two women who raised the complaints."

In the court, Judge Lord Pentland said the decisions in August were "unlawful in respect that they were procedurally unfair and that they were tainted with apparent bias".

The Court of Session in Edinburgh heard the person who investigated the complaints of sexual misconduct, which Mr Salmond strongly denies, had involvement with the complainers prior to being appointed investigating officer.

Speaking outside the Court of Session after the ruling, Mr Salmond thanked his family and friends "for standing with me over the last few months".

He said he would be writing to the "more than 4,000 people" who contributed to a crowdfunding campaign to support his legal bid, with any surplus money going to charity.

He said: "The last time I was in that court, it was to be sworn in as first minister of Scotland. I never thought at any point I would be taking the Scottish Government to court.

"While I'm glad about the victory, I'm sad that it was necessary to take this action."

Mr Salmond said there was an "unnecessary" cost on the public purse.

He said: "All of this was unnecessary. Throughout the process we offered mediation, legal arbitration, so that this matter could be properly settled without having to come to the highest court in the land. At every stage that was rebuffed by the Permanent Secretary.

"I notice in their submissions that the advocate for the Government said the Government accepted institutional responsibility - not personal. Therefore I suggest the Permanent Secretary to the Scottish Government not accepts that responsibility and considers her position."

Mr Salmond said leaks about the case were "deliberate and malicious".

He added: "I've been deeply troubled throughout the case by the leaking of confidential information by whoever.

"Any complaints process has to be transparent, balanced, fair and confidential. That's in the interests of the complainers and those complained about.

"We have a process - or at least had one in the Scottish Government - called 'fairness at work'. I knew about it because I introduced it. Thank goodness that is still in force, at least for civil servants, as opposed to the total mess which was introduced by the Permanent Secretary.

"If confidentiality is breached, then it undermines the entire process."

Summarising, Mr Salmond said: "I'm obviously glad - delighted - by the result today.

"The Government have made an abject surrender in terms of the case before we even got to the first day of hearings.

"I'm just sad it was necessary to take this action in this court of session to prove that point."

Concluding his statement, Mr Salmond said: "Back in August when I made my last comments on these matters, I said that the process used against me was unfair, unlawful and tainted by bias.

"I also said that I was not guilty of any criminality. The first of these has been established, the second is to come.

"But a former first minister of Scotland requiring to take the administration of the Scottish Government to court to establish that point should not have been necessary.

"And the person responsible for that - that institutional failure, the Permanent Secretary to the Scottish Government - should consider her position and take the appropriate action."

Responding to a reporter's question asking if he was "entirely innocent" of any claims of sexual misconduct, Mr Salmond said: "I am certainly not guilty of any criminality.

"I am certainly not guilty of what the Permanent Secretary has suggested.

"I never said, incidentally, I was an angel."