- 8 Sep 2020
For the record, I shall be giving evidence to Committee on behalf of Ministers and not in a personal capacity.
Given today’s exploratory session is on the judicial review, let me say at the outset - the Scottish Government conceded that one part of the internal procedure should have been applied differently. I repeat my unreserved apology to all concerned for this procedural failure, and my commitment that we shall apply learning, including from the forthcoming review led by Laura Dunlop QC.
Convener, an apology is important – but so is an explanation.
Whilst the meaning of the procedure’s paragraph 10 about the role of the Investigating Officer was clear to those involved in its drafting, development and operation - that is, the Investigating Officer not being involved in the matter being investigated - in the context of the judicial review it became clear that the paragraph was open to a different interpretation. That is, to mean no involvement in the subject matter of the complaint and in addition - no prior contact with the complainers themselves. During the judicial review it became evident that removing the scope for ‘any different interpretation’ would have been beneficial.
The test of bias in the judicial review is whether ‘the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the person judging the issue was biased’. In December 2018, following legal advice, Scottish Government concluded that interactions between the Investigating Officer and complainers were such that the test of apparent bias was met. Once clear, the decision to concede the judicial review was taken quickly.
However - and importantly - the basis for the Scottish Government concession of the judicial review was the acceptance of apparent bias, not actual bias. Scottish Government did not - and does not - accept any suggestion that the Investigating Officer acted in a partial way, or that either the investigation or the decisions that were reached were partial. At all times those involved in the procedure acted in good faith.