Committee on Scottish Government’s Handling of Harassment Complaints investigation: Permanent Secretary statement – January 2021

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

Convener, in January 2018 the Scottish Government received two formal harassment complaints and applied a Government procedure, which had been developed in line with legal and HR advice, to investigate the issues raised.

These complaints could not be ignored.  Firstly, everyone has the right to a safe workplace, free from harassment. The Scottish Government recognises this as both a legal and moral responsibility – and as part of its duty of care to all employees.  Secondly, these were serious and specific allegations. In fact three of the alleged incidents were considered sufficiently serious that, upon advice, it was deemed necessary to refer them to the Police in case they constituted not only behaviour that was unacceptable in the workplace but also criminal behaviour.

The complaints were investigated internally over several months by an Investigating Officer following due Government process and drawing on the statements of witnesses provided by both the complainants and Mr Salmond.  The Scottish Government was in regular contact with Mr Salmond’s lawyers from 7 March 2018, when, following completion of the Investigating Officer’s initial report, he was, in line with the procedure, informed of the complaints.

Mr Salmond’s full, fair and reasonable participation was sought in line with Government procedure and as set out in evidence provided to the Committee he was fully represented throughout via his lawyers. Timescales were extended on three occasions to allow Mr Salmond additional time to respond to the complaints. Indeed, I specifically instructed that the Investigating Officer’s final report should not be finalised until Mr Salmond had been given a further opportunity to present his position as fully as possible. 

The Government procedure specifies the Permanent Secretary as the decision maker, responsible for determining if there is a reasonable belief that a complaint is well-founded. That involves considering each individual cause for concern, weighing up all evidence available, drawing on advice and on extant legislation, and setting out the rationale in coming to a view, including which complaints to uphold and which not.  I exercised this responsibility with care over several weeks; questioning and challenging the detail, comprehensiveness, appropriateness, quality and robustness of all evidence presented to me. 

In keeping with the Government procedure, I did not inform the First Minister that an investigation was underway.  However, I understand Mr Salmond did. The First Minister did not make any attempt to influence the investigation at any point, nor did she receive a copy of the Investigation or Decision Reports.

I would like to provide greater detail on the evidence and rationale for my decisions as set out in the Decision Report, but as you know, I am unable to share this due to a dispute with Mr Salmond about whether the Report, now reduced by the court, can be shared.  

But what the Scottish Government can share, it has. We have followed through on the Deputy First Minister’s commitment, in his letter of 26 October, to provide the Committee with as much material as possible to aid its deliberations. To date we have provided 598 documents, totalling over 1900 pages and 19 hours of evidence by civil servant witnesses.  In addition the Scottish Government has taken the unprecedented step of arranging confidential access for Committee Members to the summary of legal advice ahead of the decision to concede the judicial review on a single ground of a potential perception of bias.  

Convener, this may be my final appearance at this Committee. I would like to close with three fundamental points. 

 Firstly -  as those of you who have served as Ministers know - the Civil Service serves the Government of the day, including implementing Government procedures.  The Civil Service Code informs all Civil Service actions, at all times. It requires me as Permanent Secretary to act lawfully, taking and acting in accordance with professional advice at all times.  I can assure the Committee I did that.  That Code, along with legal advice, guided and informed every Scottish Government action under scrutiny by this Committee - in the development of the harassment procedure, the investigation of these serious complaints and the decision making that followed. As the Lord Advocate has confirmed, the position of the Government at all stages of the subsequent judicial review was informed by legal advice and, prior to the decision to concede, based on assessments that the case could be properly defended. 

The Civil Service Code and its values of integrity, honesty, objectivity and impartiality are statutory. They are also integral to our professional behaviour and judgement.  Having spent half my public service career in the Civil Service, I hold these values dear, as I know do all civil servants. So whilst I welcome the Committee’s scrutiny and challenge, I robustly and resoundingly reject any attempt to misinterpret, misattribute or misconstrue the role or motives of civil servants who carried out their professional responsibilities in good faith in order to improve the Scottish Government workplace culture and – importantly – respond to serious and specific complaints raised. 

Nevertheless, as Permanent Secretary I am responsible for the leadership, operation and performance of the organisation. That is why I have acknowledged and apologised on several occasions for the procedural failing that came to light.  And that is why I have committed to apply valuable learning points across the Scottish Government – from the outcome of the judicial review, the forthcoming conclusions of the review led by Laura Dunlop QC, the findings of this Inquiry and indeed from our internal review of information management - to ensure that staff have confidence in our commitment and approach to tackling sexual harassment in the workplace.  There is no room for complacency but you will find evidence that we are making headway in this endeavour in the recent 2020 People Survey results where we have achieved strong improvement on leading and managing change, our highest ever score in inclusion and fair treatment, and the lowest ever proportion of colleagues responding that they had been bullied or harassed at work.

Finally, Convener, in my first appearance before this Committee I said that the Scottish Government did not choose the easy path - but it was - and remains - the right path.  It was right to create the environment in which these complaints could come forward. It was right to challenge any culture of silence and tolerance, to provide channels to report harassment, to ensure that victims feel heard and their concerns validated.  It was right to take these complaints seriously and to investigate them fairly.  It was right to defend our actions in doing so in court.  Doing nothing in 2017 was not an option.  Indeed, Convener, if that had been the decision, it would have been strongly and justifiably criticised.  I still stand firmly by that position and shall continue to champion the Scottish Government’s work to support staff wellbeing, and to build an environment where employees not only expect, but are empowered to demand, a safe workplace, free from harassment wherever that might come from.  Indeed Convener, I am sure you would expect nothing less.