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by Andrew Learmonth
22 March 2021
Sturgeon cleared of breaching ministerial code

Sturgeon cleared of breaching ministerial code

NICOLA Sturgeon did not breach the ministerial code, according to an independent investigation.

In his long-awaited report, the former Irish prosecutor James Hamilton, said the First Minister had not misled parliament, nor had she attempted to intervene in the investigation into allegations of harassment against her predecessor.

The exoneration by the prosecutor strengthens Sturgeon’s hand ahead of a vote of no confidence in Holyrood on Tuesday that she will now almost certainly survive.

She welcomed the report, describing the findings as an “official, definitive and independent adjudication” that she had not broken the rules.

Scottish Conservative leader Douglas Ross said he could not agree with Hamilton’s assessment, and urged the other parties to get behind his motion of no confidence in the First Minister.

Sturgeon referred herself to the independent panel on the ministerial code in January 2019, shortly after the Scottish Government conceded its investigation of the complaints against Salmond had been “unlawful” and “tainted by bias”.

One of the key charges against the First Minister is around when she knew about the civil service probe and about her contact with Salmond during the investigation.

Initially, after the Scottish Government conceded the judicial review in January 2019, she told MSPs that she learned of the government’s investigation when Salmond told her at a meeting in her Glasgow home on April 2, 2018.

However, it later emerged that she met his former chief of staff, Geoff Aberdein, just days earlier, on March 29 in parliament.

In her written evidence to the committee, Sturgeon said she had forgotten about this meeting and that it was opportunistic and casual.

Salmond has said this was untenable. He said Aberdein “discussed the existence of the complaints and summarised the substance of the complaints” at that "pre-arranged meeting".

Section 1.3 of the ministerial code states that "ministers who knowingly mislead parliament will be expected to offer their resignation to the First Minister".

In his report, Hamilton said it was “regrettable” that the First Minister had not mentioned her conversation with Aberdein in that initial statement.

He added: “In my opinion, however, her explanation for why she did not recall this meeting when giving her account to Parliament, while inevitably likely to be greeted with suspicion, even scepticism by some, is not impossible.

“What tilts the balance towards accepting the First Minister’s account for me is that I find it difficult to think of any convincing reason why if she had in fact recalled the meeting she would have deliberately concealed it while disclosing all the conversations she had had with Mr Salmond.

“Furthermore, given that the meeting was with Mr Aberdein who was expected to report it back to Mr Salmond it would have been naive to think that the meeting would remain secret given the First Minister’s poor relationship with Mr Salmond at that point.”

He said the omission was the result of a “genuine failure of recollection”.

“That failure did not therefore in my opinion amount to a breach of the ministerial code,” Hamilton said.

He said it was “for the Scottish Parliament to decide whether they were in fact misled”.

Sturgeon was also accused of breaching rules by not properly declaring the nature of her meetings, whether they were government business or SNP business.

The ministerial code states that "the basic facts" of government meetings with "external individuals" should be recorded.

The April 2 meeting was not recorded. The First Minister told the Holyrood inquiry into the affair that she had "met a friend of 30 years" as leader of the party, because she "suspected that he may be about to resign from the SNP".

It was, she said, personal and political.

In his evidence, Salmond said "all participants in that meeting were fully aware of what the meeting was about and why it had been arranged".

He added: "The First Minister's claim that it was ever thought to be about anything other than the complaints made against me is wholly false."

This also leads to questions over intervention. Salmond says Sturgeon did offer to intervene in the complaints process at the first meeting. The First Minister denies this. She also said that telling the civil service that she had met with Salmond during the investigation would have, in effect, been an intervention.

It was only on June 5 when Salmond raised possible legal action that she told the permanent secretary, Scotland’s most senior civil servant.

While Hamilton accepted Sturgeon’s claim that “her motivation for agreeing to the meeting was personal and political, and she may have sought to underscore this by hosting it in her private home with no permanent civil servant present and no expenditure of public money, it could not in my opinion be characterised as a party meeting.”

He added: “Members of political parties do not ordinarily attend party meetings accompanied by their lawyers, and when the First Minister’s husband, who is chairman of the SNP, arrived home, he did not join the meeting.”

Hamilton added: “As the First Minister has repeatedly, and correctly, stated, she did not intervene. Indeed, her failure to intervene has been a constant source of complaint from Mr Salmond who has even suggested that her failure to do so may itself have been unlawful as contrary to the Scotland Act.”

“If Mr Salmond was entirely confident that he had in fact secured an unequivocal commitment from the First Minister to intervene 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,” the prosecutor added.

Hamilton said he also fully 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 the proceedings or interfering with their confidentiality.”

He added: “In my opinion, therefore, neither the letter nor the spirit of paragraphs 4.22 and 4.23 of the Ministerial Code applied to the discussions between the First Minister and Mr Salmond.

“Consequently I do not consider that the First Minister acted in breach of the code in not disclosing them prior to June 5.”

Another charge against Sturgeon was that she prolonged the judicial review, even though counsel had warned of defeat.

Salmond said the government knew in October 2018 that they would lose. The Scottish Government said it was only towards the end of the year when it became obvious they would have to concede.

In his report Hamilton said: “There is undoubtedly scope for political criticism of the manner in which Scottish Government handled Mr Salmond’s proceedings. That is not a matter for me to express any view upon.

“However, Mr Salmond argues that the manner in which the case was handled amounts to a breach of 'the overarching duty on Ministers to comply with the law' stated in paragraph 2.30 of the Ministerial Code.”

While counsel “made clear their disagreement with decisions” taken by the government, they “accepted that the final say rested with the Law Officers”.

He added: “There is no doubt from the whole manner and tone of counsel’s advices that they would, quite properly, have declined to accept any instructions which were improper. Mr Salmond appears to be under the misapprehension that the government is under a duty to withdraw a case if advised that there is less than an evens chance of winning.

“There is no such rule and the prediction of the outcome of cases is not an exact science. There is in my opinion no evidence whatsoever that the First Minister acted improperly or in breach of the Ministerial Code with respect to Mr Salmond’s petition.”

There was some criticism over one of Sturgeon's officials, who revealed the name of one of the women who complained about Salmond to Aberdein.

Hamilton said that because four other witnesses corroborated Mr Aberdein's version of events: "I believe that Mr Aberdein's account of what was said by [the official about] the existence of the complaints and the identity of the complainers is credible".

He said: "It remains the fact that the name which Mr Aberdein was given to him was in fact the name of one of the complainers against Mr Salmond."

Speaking after the publication of the report, Sturgeon said: "I welcome the conclusions of James Hamilton’s independent investigation, which are comprehensive, evidence-based and unequivocal.

“Mr Hamilton has considered all of the allegations against me, and I am happy that his report’s findings clear me of any breach of the ministerial code. 

“I sought at every stage in this issue to act with integrity and in the public interest.  As I have previously made clear, I did not consider that I had broken the code, but these findings are official, definitive and independent adjudication of that.

“Prior to its publication, opposition politicians stressed the importance of respecting and accepting the outcome of Mr Hamilton’s independent inquiry, and I committed wholeheartedly to doing so. Now that he has reported, it is incumbent on them to do likewise. 

“Today I want, once again, to remind people that at the heart of this case were women who had the courage to come forward and complain. That they were let down by the Scottish Government’s handling of their complaints is not in dispute, and I again apologise to them for that.

“I was determined, however, at the time these complaints emerged that they should not be swept under the carpet, and that I would not intervene in the process.

“Had I done so, as requested by Alex Salmond, it would – as Mr Hamilton observes – ‘undoubtedly have been seen as a partisan and political interference’ which ‘would undoubtedly have undermined public confidence in the processes of government to a much greater extent than in fact eventually happened’.”

She added: “Now that this investigation is complete and its conclusions public, I will continue to devote all of my time and energy to leading Scotland, to helping the country through the pandemic, and to ensuring that as we rebuild from the hardships of the last twelve months, we do everything we can to protect jobs, support our health service and rebuild our communities for the better.”

Hamilton's report was published alongside a note in which he expressed his "frustration" that parts of it would have to be redacted to comply with court orders.

He said: “I am deeply frustrated that applicable court orders will have the effect of preventing the full publication of a report which fulfils my remit and which I believe it would be in the public interest to publish.”

Another report by Holyrood’s cross-party harassment committee is due out on Tuesday. Leaks suggest it will claim Sturgeon did break the ministerial code. Though the party political nature of the inquiry means the findings have already been dismissed by the SNP.

Commenting on the report's publication, Scottish Labour leader Anas Sarwar said:  “Unlike others, we have been clear from the outset that we would not prejudge the outcome of this inquiry.

“We acknowledge the findings of the report and we await the publication of the committee inquiry and whether its members conclude the First Minister misled parliament.

“What is clear is that this entire process has deeply damaged public trust in our politics at a time of national crisis, and there are absolutely no winners today.”

Meanwhile, a Conservative motion of no confidence in the First Minister has been brought forward and will be held tomorrow.

Scottish Conservatives leader Douglas Ross said: “The First Minister has been given a pass because it has been judged her 'failure of recollection' was 'not deliberate'.

“I respect Mr Hamilton and his judgement but we cannot agree with that assessment. Nicola Sturgeon did not suddenly turn forgetful.

“She is not free and clear. The First Minister promised to ‘respect the decisions’ of both inquiry reports, not to pick and choose which one suits her and try to discredit the other.

“The SNP spin machine will go into hyper-drive to again attack the committee report because they’re running scared of its findings. They have accelerated the Vote of No Confidence in Nicola Sturgeon to avoid MSPs scrutinising that report.

“If Nicola Sturgeon won’t accept responsibility, then I urge opposition parties to back our vote of no confidence.”

Scottish Greens co-leader Patrick Harvie MSP said: “Unlike other political parties, we’ve said all along that we would respect due process, we therefore welcome the publication of James Hamilton’s independent report.

“It retains credibility in this process, unlike the parliamentary committee which has repeatedly sabotaged its own authority and betrayed the trust of original complainers.

“Mr Hamilton has clearly concluded that the First Minister did not breach the ministerial code, so we will not support the vote of no confidence being pushed by the Tories.

“In lodging a vote of no confidence before this report was published, just as they called for the First Minister's resignation before she even gave evidence to the parliamentary committee, the Tories have shown that they have no interest in establishing the truth.”

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