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by Jack Thomson
28 March 2021
Cleared for duty: Nicola Sturgeon didn't breach the ministerial code but is that the end of the matter?

An independent inquiry said Nicola Sturgeon did not breach the ministerial code (Photo by Anna Moffat)

Cleared for duty: Nicola Sturgeon didn't breach the ministerial code but is that the end of the matter?

As the First Minister left her home in Glasgow on the morning of Tuesday 23 March, a year since the country first entered lockdown, she was met by a bank of expectant reporters armed with microphones and the ferocious clicking of photographers’ cameras. 

There was no shortage of subjects to talk about. Holyrood’s harassment committee had published its findings on the Scottish Government’s “seriously flawed” handling of complaints against Alex Salmond and the judicial review that followed in January 2019.

The previous afternoon, an independent investigation had cleared her of breaching the ministerial code – a moment of vindication after weeks of criticism and calls for her resignation over the saga.

Nicola Sturgeon is known for her measured personality, both in governance and her choice of words, and she had no intention of deviating from that approach that morning. There was to be no outward show of defiance, no rallying call ahead of a dawning election campaign.

Instead she chose to remember those who have been lost during the pandemic and publicly refocus her efforts on guiding the country out of it.

“I’m going to leave politics to others today,” she told waiting journalists. “My thoughts today, one year on from the country going into lockdown, are with the almost 10,000 families across the country who have lost a loved one and everyone who has made really painful sacrifices over the last year, so my priority today is to continue to take the decisions that help get the country through this most difficult of times.”

Some hours later a vote of no confidence in her leadership, instigated by the Scottish Conservatives, would fall with a whimper, bringing a brief respite to a rollercoaster eight-day period for the First Minister. 

In that time, the reports of three inquiries were published. The first on 16 March was Laura Dunlop QC’s review of the Scottish Government procedure for handling harassment complaints involving current or former ministers. The second on 22 March was the independent report by James Hamilton on the First Minister’s self-referral under the ministerial code. And the third was the report of the Committee on the Scottish Government Handling of Harassment Complaints on 23 March. 

The reports were a cocktail of critical observations and insights from two people in the legal profession and a group of cross-party MSPs, who have been holding oral evidence sessions since August 2020. Those who attended the committee included but were not limited to Leslie Evans, the permanent secretary of the Scottish Government; Peter Murrell, the chief executive of the SNP and Nicola Sturgeon’s husband; former first minister Alex Salmond and the First Minister herself. 

Ultimately the findings of the three reports – while in some instances quite damning – were not enough to force the resignation of a formidable political leader in Sturgeon and she has already been clear that it will not see the exit of Evans, who despite all the critical errors made, Sturgeon says she has every confidence in.

That may act as reassurance for the permanent secretary, but it is unlikely the end of the debacle for Evans, with Salmond releasing a statement on 24 March, in which he accused her of refusing “to accept real responsibility”. He confirmed his intention to take legal action in the Court of Session, “arising as a direct result of the conduct of the permanent secretary”.

Importantly, Salmond also said the findings of the reports should be accepted and that he intended to “move on” –  days later, he announced his intention to stand for Holyrood as he launched the new pro-independence Alba Party. 

It was the Hamilton inquiry that was most significant in determining the First Minister’s future. Sturgeon referred herself to the independent panel on the ministerial code shortly after the government conceded its investigation of complaints against Salmond had been “unlawful”.

Hamilton, a former Irish prosecutor, was asked to examine whether she breached the ministerial code over her actions during the civil service probe. 

One of the charges against the First Minister centered on when she knew about the investigation and her contact with Salmond throughout. Initially she told MSPs that she learned about it when Salmond told her at a meeting in her home on 2 April 2018. It later emerged that she met his former chief of staff, Geoff Aberdein, days earlier on 29 March in parliament – a meeting she dismissed as fleeting.

Hamilton said in his report: “It is regrettable that the First Minister’s statement on 8 January 2019 did not include a reference to the meeting with Mr Aberdein on 29 March.” But he said the omission was the result of a “genuine failure of recollection and was not deliberate” – a failure which, he said, did not amount to a breach of the ministerial code.

Sturgeon was also accused of a breach by not properly declaring the nature of meetings, whether they were government or party business. The ministerial code states that “the basic facts” of government meetings with “external individuals” should be recorded. The 2 April meeting at her home was not recorded. She told the harassment committee that in meeting Salmond she had met a friend as leader of the SNP because she suspected he may be about to resign from the party. This was disputed by Salmond who, in his evidence, said: “The First Minister’s claim that it was ever thought to be about anything other than the complaints made against me is wholly false.”

Additionally, Salmond said Sturgeon offered to intervene in the complaints process, a claim which his lawyer also made in written evidence. The First Minister has denied this, telling the Holyrood inquiry: “The crucial part is I didn’t intervene.” With Salmond seeking a further meeting, Sturgeon wrote to the permanent secretary on 6 June to let her know she was aware of the investigation and that the former first minister was considering legal action.

Hamilton agreed with Sturgeon that the key point was that she did not intervene, adding that if Salmond had secured that commitment on 2 April “one might have expected him to follow it up and to press home his advantage. In fact, however, the next communication between the First Minister and Mr Salmond did not occur until three weeks later.” Hamilton said he also accepted the “logic of the First Minister’s position that it would have been impossible to record such meetings or discussions without a risk of prejudicing proceedings or interfering with their confidentiality.”

Another accusation was that Sturgeon prolonged the judicial review, even though counsel had warned of defeat. But Hamilton said there was “no evidence whatsoever” that the First Minister breached the ministerial code with respect to Salmond’s petition.

Despite Douglas Ross’ claims that Sturgeon was not “free and clear” or Willie Rennie’s insistence that resignation should still be a “live consideration”, the First Minister emerged relatively unscathed from the independent inquiry’s findings. It was a huge boost on the verge of an election campaign. 

And while the Holyrood inquiry came to some serious conclusions, it had arguably been undermined by the early leaking of its findings. On Thursday 18 March, five days ahead of publication, it was made public that MSPs on the committee had voted down party lines, five to four, that Sturgeon had misled the committee and therefore parliament. 

Among the leaked opinion was that the opposition members found it “hard to believe” that Sturgeon had no knowledge of any concerns about inappropriate behaviour on the part of Salmond prior to November 2017. Sturgeon’s office said this was not supported by a “single shred of evidence”, accusing members of “baseless assertion, supposition and smear”. More galling perhaps was the leaking of evidence to the Sunday Times from the two complainers at the centre of the Salmond inquiry, who had appeared before the committee in private.

The situation had debatably cast a cloud over the report, which raised some notable concerns – namely that the government caused an avoidable situation, that the “catastrophic failure” to disclose documents led to the high level of cost being awarded and that the complaints procedure was developed too quickly in the wake of the #MeToo movement.

The committee was also told by the complainers they were not supported by the government following the conclusion of its process. An excerpt from one of the witnesses makes for stark reading. “We were given regular updates over the period of the judicial review, but after that we were basically just dropped,” she said. “We went through the entirety of the police investigation and the criminal trial with next to no contact from the Scottish Government, let alone any kind of support… it felt as though we were just left to swim.”

The Holyrood inquiry’s findings may have little to no impact on Sturgeon’s future as First Minister, with the SNP expected to comfortably win the 6 May Scottish Parliament election. But comments such as these from a complainer should trouble her. And they likely will, given she has previously said at First Minister’s Questions she will be “haunted” for the rest of her life by the government’s error that “let down” the women. It has been acknowledged by many that the women who should have been at the heart of attempts to figure out what went wrong with the government’s botched handling of complaints have not been. 

The future direction of the complaints process, which was first developed in 2017, will be guided by the Dunlop report, which was the result of a government-commissioned externally led review of the procedure for handling harassment complaints involving current or former ministers. It was announced after the judicial review was conceded and the remit was to draw out lessons from that first application and advise on the changes required. 

Dunlop agreed to do the review in July 2020 and her report was published on 16 March, with 10 recommendations. Among them was the advice that formal complaints against a former minister should be investigated and adjudicated independently. According to Dunlop, this could be the Commissioner for Ethical Standards in Public Life or the independent advisors on the ministerial code.

The QC also said there should be consideration of whether to include a provision allowing a complainer’s wish to avoid police involvement to be respected. The report said it should be “spelled out clearly in the procedure” what a complainer should expect. 

Scottish Labour’s Jackie Baillie believed Dunlop’s input was telling and confirmed the policy was “not fit for purpose”, adding it was “a damning indictment” of the SNP’s failure. The government has since said it will work with the unions on how the recommendations can be implemented, considering the wider context of the Hamilton report and the Holyrood inquiry’s findings. 

The First Minister’s administration has expressed a willingness to learn from its mishandling of the complaints. The pressure to do so may not be felt by the SNP in the coming election, but the burden to improve will likely be carried by Sturgeon in her next government.

Read the most recent article written by Jack Thomson - Scottish Labour reveals £75 voucher plans to help high streets and tourism

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