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

Thank you, Convener, for accommodating my attendance at Cabinet this morning – much appreciated given the crucial issues preoccupying the Scottish Government at the moment.

As is standard procedure, but for the record, I want to be clear that I, and any civil servant giving evidence to Committee, will be doing so on behalf of Ministers and not in a personal capacity.  Also, I shall limit my opening remarks to the issue on which I know you are taking evidence this morning – the development of the procedure to handle harassment complaints involving current or former Ministers – during the period October to December 2017.

Convener, under-reporting of sexual harassment appears to be endemic across most organisations and institutions. In response to the Scottish Parliament’s own survey question on what action staff had taken in relation to sexual harassment incidents they had experienced, the most common response was that they had not done anything about it.

Every single one of us has a right to a safe workplace, free from harassment.  The Scottish Government recognises this as a legal responsibility - a duty of care to all employees - to create a culture where such behaviours are simply not tolerated.  

The Scottish Government has been on a journey of cultural change since 2015 to ensure the organisation is more open, capable and responsive.  As Permanent Secretary, I have led a focus on equality, inclusion and wellbeing, including addressing bullying and harassment.

This is still work in progress but there is evidence of improvement.  Our most recent People Survey showed a marked increase in the reporting of bullying and/or harassment – with 57% of those who had experienced bullying and harassment saying they had reported it - up 19% points from previous year.  Staff’s positive experience of inclusion and fair treatment reached its highest ever score at 83% - amongst the highest in the whole of the UK Civil Service.

So the #MeToo movement which grew in 2017, drawing attention to the historical nature of harassment which had not been reported and dealt with, added a welcome, but additional momentum to an existing programme of work.

For the Scottish Government, the logical next step was to review its own procedures.  I was commissioned to do so by Scottish Ministers on 31 October 2017 and by the then Cabinet Secretary and Head of the UK Civil Service Sir Jeremy Heywood on 3 November. 

The Scottish Government’s response to that review, in line with wider work, was to challenge a ‘say nothing’ culture.  To give staff – all staff from any part of the organisation - confidence that concerns and complaints could be brought forward and would be addressed.

Having considered the relevant policies, it was concluded that to address an identified gap, and to clarify existing provision, a procedure to investigate complaints of harassment should be developed for former and current Ministers. This built upon the expectations set out in the Ministerial Code and our existing Fairness at Work policy. The Scottish Government remains ahead of many other institutions in designing and implementing such a procedure – openly and transparently - and particularly one to address historical allegations of sexual misconduct.  We did not shirk our responsibility. 

As civil servants, every process we create must be robust and fair, open to appropriate challenge and scrutiny and reflect our Civil Service Code and its core values of integrity, honesty, objectivity and impartiality. Creating this new HR procedure was no different. There was an extensive and iterative professional drafting process, led by the team in the Scottish Government responsible for offering advice on the operation of the Scottish Ministerial Code and matters of propriety and ethics.  It was informed by legal advice throughout and followed HR best practice, drawing on ACAS guidance, and sought appropriate external engagement, including with our trade unions. 

When complaints were raised it would have been unconscionable, and a failure in our duty of care, not to investigate those complaints. However, it was accepted at Judicial Review that one part of our procedure should have been applied differently. I apologise unreservedly to all concerned for this procedural failure. 

We have already learned early lessons from this experience as part of work being led by our People Directorate.  And we also await the findings of the review which I commissioned, externally led by Laura Dunlop QC, now underway. But it remains the case that the investigation of those complaints was the right thing to do.

Convenor, I would also like to take this opportunity to underline, for the record, the Scottish Government’s commitment to cooperating fully with the Committee.  That commitment is underpinned by action and evidenced by the multiple dossiers of information that have been preserved and provided to the Committee within agreed timescales. This work has been complex and time consuming in order to ensure compliance with legal, data protection and confidentiality restrictions.  I am happy to elaborate further on these points to demonstrate both the seriousness with which the Scottish Government has approached its engagement with the Committee, and additional measures which were put in place to ensure all relevant information would be provided, both before, and indeed in parallel, with responding to the COVID-19 crisis.   

In closing, Convener, I want to make three important points:

1. The Scottish Government is – and remains – ahead of many other institutions in designing and implementing a procedure to address harassment and particularly to address historical allegations of sexual misconduct. I am clear that the Scottish Government acted in good faith.  The transparency of our written procedure means that it is open to challenge and scrutiny. I accept that scrutiny - we shall apply the learning.
2. The procedure was – and is – to safeguard all staff and to assure them of the standards of behaviour they are entitled to expect in their workplace. It was developed with the professional rigour and values you would expect from the civil service, informed by legal advice and HR best practice.  But it was designed as an HR procedure, not a legal instrument.
3. In her 2018 report into bullying and harassment in the House of Commons Dame Laura Cox found ‘People who have been bullied or sexually harassed, or who have seen this happen to others, are generally reluctant to come forward and report it’.  By creating the culture and environment in which complaints of this nature could be raised and in which subsequent investigation of those complaints could take place, the Scottish Government did not take the easy path – but it is the right one.