Committee on Scottish Government’s Handling of Harassment Complaints - judicial review: Permanent Secretary statement

For the record, I shall be giving evidence to the Committee on behalf of Ministers and not in a personal capacity. 

Building on my last statement of the 8 September, I would like to set out key points on the Scottish Government position and decision making in relation to the Judicial Review and then raise one point of procedure if I may, Convener. 

Firstly, at every stage of the Judicial Review, I sought, and acted on legal advice as I am obliged to do to fulfil my obligations under the Civil Service Code, as indeed are Ministers under the Ministerial Code.

The Scottish Government position was that there was a strong case to defend.  The development of the procedure was informed by legal advice and HR best practice.  As such, the Scottish Government was confident about the prospects of success. 

These prospects of success were kept under regular review by the Scottish Government throughout the Judicial Review, as is normal practice in these matters.  Whilst the Investigating Officer’s role became the subject of increased focus from late October and during November, the Scottish Government position at that time - informed by legal advice and by information requested and gathered in preparation for court hearings - supported the continued defence of the case. 

As set out in the timeline, in response to widened document search criteria for the Commission, finalised on 14 December 2018, additional documents were identified on 19 December.  Two of these described the contact between the Investigating Officer and those who had raised concerns. Although on the face of it, the content of these documents was administrative in nature, their appearance at this stage in the proceedings, cast doubt on the capacity of the Scottish Government to clearly evidence and explain the nature of every contact, and contradicted earlier assurances.  It was at this point that it became clear that prospects had changed. 

Whilst there was nothing to suggest that the Investigating Officer did not in fact conduct her duties in an entirely impartial way, the Scottish Government concluded that the totality of interactions between the Investigating Officer and complainers were such that the test of apparent bias was met.  As a result, and in line with my responsibilities as Principal Accountable Officer, I took the decision to concede the Judicial Review very rapidly – in fact within a matter of days.

In conceding, the Scottish Government acknowledged that one part of the internal procedure should have been applied differently. I have apologised to all concerned for this procedural failure, and my commitment to apply the learning, from the review led by Laura Dunlop QC, and from the review of corporate information management processes - remains resolute.  

Convener, I would like to close on a procedural point raised in the Deputy First Minister’s letter of 6 November, regarding the role of civil servants appearing before this Committee on behalf of Ministers.  I take Parliamentary scrutiny very seriously, as I know do my Senior Civil Service colleagues, including those who have submitted evidence to date.  We are providing oral evidence on detailed, highly sensitive, complex, often technical, and historic issues, much of which is constrained by legal restrictions.  As such, and as is a long established practice, I would anticipate that civil servants would almost certainly need to follow up their appearance in writing, not least where further information or detail has been requested, and where further clarification or, indeed, correction is required.

As you know Convener, this is normal Parliamentary procedure, intended to enable full and proper scrutiny.  I am keen to ensure that this practice is neither misunderstood nor misrepresented to the public as somehow devaluing or questioning the quality and integrity of the evidence provided to this Inquiry by civil servants.  So with your permission Convener, we shall continue to supplement our appearances before you with subsequent written information in line with both Parliamentary practice and the Civil Service Code and values.