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by Louise Wilson
27 October 2020
Civil servant defends role in investigating complaints against Alex Salmond

Civil servant defends role in investigating complaints against Alex Salmond

The civil servant installed as the investigating officer after complaints were made against Alex Salmond has said she “did not have any doubts” about taking on the role despite prior contact with the complainers.

Judith MacKinnon insisted her involvement in the process had been “appropriate throughout” and her interpretation of the complaints procedure meant contact with the complainers did not rule her out of taking on the role.

The judicial review of the Scottish Government’s handling of harassment complaints against Salmond found it was unlawful. The decision hinged on MacKinnon’s prior involvement with the case and the government admitted in January 2019 it had breached its own guidelines.

MacKinnon told the Holyrood committee established to investigate the botched government investigation she was “shocked” by the Court of Session’s ruling, adding: “I felt that I had acted appropriate throughout – objectively, fairly and in line with the policy and the process.”

Paragraph 10 of the government’s complaints procedure reads: “In the event that a formal complaint of harassment is received against a former Minister, the Director of People will designate a senior civil servant as the Investigating Officer to deal with the complaint.

“That person will have had no prior involvement with any aspect of the matter being raised.

“The role of the Investigating Officer will be to undertake an impartial collection of facts, from, the member of staff and any witnesses, and to prepare a report for the Permanent Secretary. The report will also be shared with the staff member.”

But MacKinnon insisted the “intention” of the paragraph had been clear, but the final draft may not have “retained that clarification”.

She said: “We were clear about our interpretation at the time. We were clear about our intention and the role of IO in those early drafting stages, and it was merely a tidy up of policy which affected a change – it wasn’t a change of intent or what was expected of investigating officer.”

Labour MSP Jackie Baillie said MacKinnon was “straining the credibility of the committee” to ask them to accept the defence that an earlier draft of the policy allowed her to take on the role.

She said: “What I find hard to believe, as a senior HR professional as you’ve demonstrated to us, is that you didn’t read the finished policy document where paragraph 10 makes clear the absolute separation of roles.

“I cannot believe you did not refer to that, particularly in your role as investigating officer, at all and that your defence is early iterations of the policy – which was in draft form – allowed you to do both.

“I think you’re straining the credibility of the committee to ask us to believe, as an HR professional, that you didn’t read paragraph 10 when the policy was completed.”

MacKinnon insisted she had read the final document: “I did read paragraph 10. But paragraph 10 does not make explicit the separation of these roles. I think that is open to interpretation.”

MSPs were told MacKinnon took advice from an employment lawyer within the Scottish Government’s Legal Directorate throughout the process, but she was hesitant to name the lawyer as he was not a senior civil servant.

She also said her contact with the complainers was “limited”, but she had been “upfront” about this.

Paragraph 10 of the procedure for handling harassment complaints against current or former ministers remains in place while a review, led by Laura Dunlop QC, examines it.

MacKinnon also confirmed that additional guidance around paragraph 10 had “not yet” be developed. 

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