Submission Alex Salmond

Introduction

This is my fourth submission to the Parliamentary Inquiry. It should be read in

addition to, and in conjunction with, the three other previous submissions. Those prior
submissions relate to the application of the procedure (phase 2), the Judicial Review
(phase 3) and the Ministerial Code (phase 4).

This final document accordingly includes an introduction and overview of matters

linking each of the four individual submissions

It thereafter includes submissions on

1. phase 1 of the Inquiry.

2. the question of ‘conspiracy’
3. Crown Office

Documentary evidence exists to support all of the factual statements made in this
submission. I have sought to provide that to the Committee where it is within my
power to do so. Despite repeated requests, however, Crown Office has not provided
the Committee with the critical evidence which was unable to be led in the High
Court. Perhaps even more concerning is the direction from Crown Office that I face
the prospect of criminal prosecution for even referring to the existence of such
evidence or specifying (even in broad terms) what that evidence is. One of their letters
even suggested that the Committee’s use of such documentation might also constitute
a criminal offence

My hope and belief, expressed outside the High Court in Edinburgh after my
acquittal, was that documents which were not put before the jury and the public would
be published in the course of this Inquiry. To date, and despite the centrality of those
documents to the remit of this Committee and the overwhelming public interest in
their publication, Crown Office continue to veto any such publication under threat of
prosecution.

Despite that deplorable prohibition, I can confirm that all of the material factual
statements made in this submission are supported by documentary evidence. Where I
am legally allowed to direct the Committee to such documents, I will be happy to do
so.

Overview

The Committee has achieved progress in the volume of documentation supplied.

However it has been fundamentally obstructed in three key areas.

First on the legal advice which the Government received from external counsel in the
Judicial Review. In normal circumstances the extraordinary discovery by this
Committee that both Senior and Junior Counsel to the Government threatened
resignation because the case they were being asked to argue was unstateable would

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have been headline news. However, despite two parliamentary votes, the full advice
from Counsel hasn’t been provided to the Committee. It is extraordinary that the
Lord Advocate, who could sanction such advice being published, has refused to do so.
The legal provision for him to publish in the public interest is clear. Inexplicably, the
Lord Advocate has been able to simply refuse that request and to get away with doing
so in the face of the will of the Committee and of Parliament. Despite that, it appears
from what has emerged that by October 2018 external counsel advised the
Government that, on the balance of probability, they were heading for likely defeat.
And yet, despite that advice and the cost of hundreds of thousands of pounds of
avoidable legal fees, the Scottish Government pressed on with a case they expected to
lose. This submission explains why.

Second the restriction arises as a result of the failure of the Government to provide
documents from when the Judicial Review started in August 2018 until the Scottish
Government finally conceded in January 2019. There were 17 meetings with external
Counsel, daily meetings on progress of defending the Judicial Review (according to
Paul Cackette, acting Solicitor to the Scottish Government during the case) and thrice
weekly meetings according to Ms Judith Mackinnon, the Investigating Officer.
However, the Committee has yet to publish (or to my knowledge see) a single
relevant minute, email, text message or ‘One Note’ from that entire period relating to
those meetings despite being assured that such documents would be provided. Of
particular interest to the Committee would be the extent to which various parties were
informed of the progress of the case and in particular whether the Lord Advocate’s
expressed views on “sisting” (pausing) the Judicial Review pending the criminal case
were discussed, how widely and with whom.

Thirdly, the crown response to the section 23 request has hindered rather than assisted
the Committee. The information provided was neither sought nor publishable by the
Committee. Those in Crown Office providing that information must have been well
aware of that. However, text messages which could be properly considered and
published and which have been part of the Committee’s questioning and would bear
directly on the veracity of evidence given under oath to this Committee have been
withheld. The blocking of the Committee in this matter and others is nothing
whatsoever to do with protecting the anonymity of complainants, which I support and
have upheld at every stage in this process. Rather, it is a matter of the shielding of
some of the most powerful people in the country who are acutely aware of how
exposed they would become.

The Parliamentary Committee has already heard evidence of activities by civil

servants, special advisers, Ministers and SNP officials which taken individually could
be put down to incompetence, albeit on an epic scale. However taken together, and
over such a prolonged period, it becomes impossible to explain such conduct as
inadvertent co-incidence. The inescapable conclusion is of a malicious and concerted
attempt to damage my reputation and remove me from public life in Scotland. It is an
attempt which would, in fact, have succeeded but for the protection of the court and
jury system and in particular the Court of Session and the High Court of Justiciary.

However, underlying all of this and perhaps the most serious issue of all is the
complete breakdown of the necessary barriers which should exist between

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Government, political party and indeed the prosecution authorities in any country
which abides by the rule of law.

In each of the written submissions under Phases 1-4 of the Inquiry remit I have sought
to explore those themes, and identify evidence to assist the Committee in doing its job
holding the Executive to account.

The success, or failure, of this Committee in doing so will have a very significant
bearing on public confidence in the ability of Parliament more generally to expose
failures across Government. The ramifications of a Committee unable to complete its
work due to delay, obstruction and refusal on the part of those under investigation are
both profound and chilling.

Phase 1

In relation to Phase 1, I am asked for evidence regarding the development of the

policy.

I would make the following general comments, on which I will be very happy to
expand in oral evidence.

1) Fairness at Work

The Committee has heard evidence on the origins of the Fairness at Work Policy 2010
(‘FaW’). As First Minister I approved the policy and, in contrast to any other
witnesses before this Inquiry, I was actually involved in its development.
Implementation of the policy was achieved with the co-operation of the trade unions
and I was pleased to be the First Minister who sanctioned its adoption.

As Appendix 1 from a Management Board meeting of 23 November 2009 makes

clear, it was not evolved as a result of specific complaints about Ministers at the time
but reflected long standing trade union grievances about Ministerial Offices stretching
back to the days of the Scottish Office. FaW was the first workplace policy to include
Ministers and I approved it on the basis that it was made compatible with the statute
based Ministerial Code in which the First Minister is the final decision maker on the
fate of a Minister facing a complaint. This was done by placing the Deputy First
Minister in the deliberative part of the policy. The result was that only after a
recommendation had been made would the First Minister finally decide. This was
aimed at avoiding him or her judging twice on the same case. The policy was
negotiated over a period of 18 months, was carefully constructed, balanced and
lawful. It was well received by all concerned.

In the event there were no formal complaints made against any Minister under the
policy and thus it was never invoked. Specifically and to my knowledge the present
First Minister was never informed about any complaints against me because there
were none. Similarly I was never informed about any complaints against her or any
other Minister under the terms of this policy because there were none.

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In the evidence of Ms Richards (25th August 2020) she revealed that there have been
two complaints under FaW against current Ministers since 2017. Presumably these
will have been dealt with under the FaW provisions including the involvement of
John Swinney as Deputy First Minister.

This Committee is charged with finding out what went wrong. It should also look at
what can be done now to put matters right.

Fairness at Work, of which the Permanent Secretary admitted in her evidence (in
response to Ms Mitchell on 18th August 2020) to “not being an expert”, is in reality a
carefully considered policy which is still in operation for the civil service and for
serving Ministers with regard to bullying complaints. The Permanent Secretary’s
extraordinary claim in the same evidence session that it does not cover harassment
can only be a result of her admitted lack of familiarity with the policy. In reality it
covers this explicitly in paragraph 3.2.1. As recently as December 2017 FaW was
hailed by the unions in a letter to the Permanent Secretary as an achievement “of
which we all should rightly be proud and something that sets up as being more
assiduous than our counterparts down south” ([Redacted] FDA Convener)

FaW is legal, not illegal. It is procedurally fair, not unfair. It was carefully considered,
not rushed. It achieved the central longstanding workforce ambition of having
Ministers on the same footing as civil service managers. No doubt it can be updated
and improved but the current position of limbo is ridiculous.

The concept of a civil service investigation into people over which they have no
legitimate jurisdiction is nonsensical and the idea of passing the results to the relevant
political party for action is self- evidently ludicrous. If legal action wasn’t taken
against the government it would inevitably follow against any political party which
attempted to proceed with any form of disciplinary action on such an unlawful basis.

Fairness At Work should be reinstated at the earliest opportunity pending the Dunlop
review.

2) The Development of the 2017 Procedure

The Committee has already clearly established that there was no discussion or
information presented to either Parliament or Cabinet on the 31st October 2017 of
extending work place policies to former Ministers. Nor was there any suggestion that
this should be done in the Head of the Civil Service’s letter of 3rd November 2017.
And of course it was not carried forward in any other administration in the U.K. and
was opposed by [Redacted] of the UK Cabinet Office when they were briefly consulted
on the proposal later in November 2017. As she wryly asked the Scottish Government
at that time, was there also to be such a retrospective policy for former civil servants?
Nor was the new policy signalled in any of the internal communications with staff
until February 2018.

The claim of the Government is that it came about independently from James Hynd
who was tasked with drafting the policy and delivered the first draft applying ONLY

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to Former Ministers on November 8th 2017. However the previous day Ms
McKinnon had circulated a “routemap” of a policy which also suggested applying to
former Ministers. Mr Hynd reacted to that on 8th November saying that “neither of
the pathways involving Ministers look right”.

It is stretching credibility to believe that this radical departure from all previous policy
in the Scottish (or any other) administration was simultaneously and independently
dreamed up by two separate civil servants. This is despite Mr Hynd telling the
Committee on August 25th 2020 that he started with “a blank sheet of paper”. In one
of the many letters to the Committee from civil servants correcting their evidence, Ms
Mackinnon conceded on October 31 2020 that these things were “happening in
parallel”. Indeed they were and there was a common factor. That common factor is
the Permanent Secretary Leslie Evans whose office was deeply involved in directing
the work of both James Hynd on his policy and Ms Mackinnon on her route map.

In addition we know now that Ms Evans went to see the First Minister on November
6th about her information that Sky News were about to run a story concerning
Edinburgh airport. I am now in the position to know exactly what this issue was about
and the Permanent Secretary’s fears that it was about to break as a major story were
groundless. However in the febrile atmosphere of November 2017 a sense of
proportion and due process was in short supply.

In reality I had spent 30 years in public life in Scotland and for most of that time was
certainly the most investigated person in the country by the press. It is inherently
unlikely that misconduct had remained unreported and undiscovered over such a
period. Mr Murrell confirmed in his evidence to this Committee that he had never
heard of any such complaint against me in my entire time in politics and the First
Minister confirmed this on BBC television to Andrew Marr on 7th October 2018.

Regardless, the chronology revealed by the evidence tells us that the Permanent
Secretary briefed the First Minister on 6th November 2017 on the proposed story
involving Edinburgh Airport. Further, the Permanent Secretary was contacted by
Barbara Allison about a separate concern from a former civil servant on November 8th
2017. Having briefed the First Minister on the first of these it might be considered
unlikely that she did not brief her on the second. In that context, the notion that a
policy instructed immediately afterwards which specifically, and uniquely, extended
to cover allegations against former ministers is co-incidental and unrelated is hardly
sustainable.

If further confirmation of the basis for the policy were needed, the Committee has
evidence of two directly political interventions at this stage.

First, the Chief of Staff to the First Minister drafted a specific amendment on 17
November 2017 which amended the commissioning letter instructing the policy
proposing the wording “but also former Ministers, including from previous
administrations regardless of Party”. This was in an email to Leslie Evans’ Private
Secretary. It is impossible to accept that such a radical expansion of the jurisdiction of
the Scottish Government to cover not just former ministers of the current
administration but also those of previous administrations (many of whom are no

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longer even in elected office never mind in Government) was not specifically inserted
to allow the complaint against me to be prosecuted.

The second political intervention was when the First Minister and the Permanent
Secretary reached agreement, perhaps at their meeting on November 29th but certainly
before December 5th 2017, that the policy should be recast in order that FM should be
taken out of the policy proper and only consulted or even informed after the process
was complete. This was a fundamental change in the policy.

The timing of this is significant. When the Permanent Secretary agreed with the First
Minister that she should take over as key decision maker in terms of this new policy
she was already aware of the developing complaints against me. Therefore she put
herself at the centre of a policy in the full knowledge that I would likely be the first
(and perhaps only given the subsequent declaration of illegality) subject of its
implementation. Doing so from a position of already being tainted by bias is an
extraordinary decision.

Despite her protestations to the contrary the Permanent Secretary was chiefly
responsible for the pursuit of an unlawful policy which has cost the Scottish people
millions of pounds.

In her letter of 21st June 2018 to Levy and McRae she describes the policy as
“established by me”. She claimed ownership of it then, but not now. When asked at
the Committee she said “there seems to have come into being a tradition of calling it
my procedure. It is not; it is a Scottish Government procedure and one that has been
agreed by Cabinet..” In fact, this procedure was never even seen by Cabinet or
Parliament.

It was established by Ms Evans.

In her presentations before the Committee, the Permanent Secretary still seems
oblivious to the scale of the disaster she has inflicted on all concerned or the enormity
of the misjudgements she has made.

The view that she should have resigned on 8th January 2019, the day that Lord
Pentland’s interlocutor judged the policy Ms Evans established and the actions taken
as “unlawful”, “unfair” and “tainted by apparent bias” is widely shared not least by
Cabinet Ministers. The damage she has done to the reputation of the civil service is
very significant. In my view, any person conscious of the responsibility of holding
high office would have resigned long ago. Instead Ms Evans’ contract was extended.

3) The role of the Investigating Officer

As the Committee has already discovered the “prior contact” of the Investigating
Officer with the complainants was not “welfare”, as was indicated to Parliament, but
was specifically contact about emerging complaints, weeks before the policy under
which they were to be pursued was even approved.

The Committee has already established that complainants were informed that Ms
McKinnon would be appointed the Investigating Officer in early December 2017,

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long before complaints were actually made. The Committee has further established
that the draft policy was even shared with one complainant for her comment and that
Ms Mackinnon was in contact with both complainants to discuss the basis on which
future complaints might be submitted under the policy.

Documentation which finally emerged at the Commission and Diligence ordered by

the Court of Session at the end of December 2018 demonstrated that the Government
pleadings were false in terms of the nature of this contact. This has been admitted by
the Lord Advocate in his evidence to the Inquiry on 8th September 2020. Again, such
conduct appears to carry no sanction. These are serious matters, especially so for a
Government making statements to a public court.

For example the “OneNote” from Judith McKinnon dated January 9th 2018, and
revealed as a result of the Commission process, speaks to “changing” the position of a
reluctant complainant, the sharing of complaints, and of it “being better to get the
policy finalised and approved before formal complaint comes in” and of not telling
the FFM until we are “ready”. It is this information that was completely at odds with
the government pleadings in the Judicial Review and indeed stands in stark contrast
with the oral evidence presented to the Committee.

These practices are not just wrong, they are an affront to the principles which
underpin workplace and human resources policy across the country. The Committee
has made reference to ACAS guidance at various stages of the Inquiry. How such
conduct could even be contemplated by an individual employed at significant public
expense and with a string of HR qualifications remains to be explained.

Watching the evidence before the Committee, it is apparent to me that even after
having conduct declared illegal in the Court of Session, those at fault in the civil
service still cannot accept the fact that they did something seriously wrong. In reality
behaving unlawfully is as serious as it gets for any public servant.

The repeated claim that the terminology somehow changed for the first to the final
drafts of the procedure thus causing confusion for those implementing the policy is
not just irrelevant (since it is only the final version that matters) it is also untrue.

In fact one of the very few unchanged provisions in the policy as it went through
numerous drafts and redrafts between November 8th to the final iteration on
December 20 2017 was that the Senior Officer/ Investigating Officer should have “no
prior involvement”.

Nor is it credible that the claim that the need for impartiality of an investigating
officer or equivalent was misunderstood. On the contrary, both James Hynd (10th
November 2017) offering 3 names at “arms length” and Judith McKinnon (7th
November 2017) seeking to engage an “independent party to investigate” recognised
this at an early stage.

Whether that person came from the broader civil service or outside it is secondary.
Perceived freedom from bias is an easily understood concept which is well
established in common law and in workplace policy. The appointment of Judith
McKinnon in this light was always wrong and is incomprehensible particularly in the

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face of the fact that she has confirmed before this Committee that the nature of her
prior contact with the complainants was well known and indeed sanctioned among her
colleagues and line managers.

When the fact of it was discovered by the Government’s external Counsel (and even
after the duty of candour was explained to government lawyers by them on November
2nd and then by the court on November 6th, both 2018) the attempt was still made in
pleadings to present it as “welfare” contact.

The documents which demonstrated this to be false had to be extracted from the
Government by a Commission and Diligence procedure under the authority of the
court as granted by Lord Pentland. The documents then produced under that
procedure emerged despite the Government being willing to certify to the Court that
these documents simply did not exist. That conduct is outrageous for a Government.
At the Commission itself, Senior Counsel for the Government (himself blameless for
the debacle) felt compelled to apologise to the court repeatedly as new batches of
documents emerged.

It is highly probable that had this documentation not been concealed from the court
(and from the Governments own counsel) the falsity of the Government’s pleadings
would have been avoided. The fact that even after the Government case collapsed,
misinformation then appeared in both a press release from the Permanent Secretary
and the First Minister’s statement to Parliament of 8th January 2019 speaks to an
organisation unable and unwilling to admit the truth even after a catastrophic defeat,
the terms of which they had conceded to the Court of Session.

The interests of the complainants

I also want to make a submission about the claims by the Scottish Government to
have promoted the interests of the women who raised complaints. That is, on the
evidence before the Committee, clearly false.

The Permanent Secretary claimed to the Committee that the interests of the
complainants were paramount in the Government thinking. This is very far from the
case.

The complainants were brought into the process by conduct “bordering on

encouragement” as it was submitted by my Senior Counsel to Lord Pentland in the
Judicial Review

The complainants were assured that they would be in control of the process and that
any police involvement would be their choice.

This assurance has been stipulated from the earliest origins of the policy (eg Nicola
Richards’ email to Permanent Secretary of 23 November 2017) and remained in place
until the Permanent Secretary countermanded it in her instruction to Ms Richards to
send her decision report to the Crown Agent in August 2018, a move taken against the
direct wishes of the complainants.

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They were offered the option of making “anonymous complaints” for which there is
no provision in the policy. However, when it came to actually protecting the
anonymity of the complainants through a court order in the Judicial Review in
October 2018 the Government was not even represented by Counsel in court. It was,
in fact, me who instructed Counsel to seek that anonymity on the part of the women
concerned.

The investigation was carried out against the advice of the police who pointed out that
the Scottish Government were not competent to conduct the investigation. This has
been made available to the Committee in the police evidence from the Chief
Constable.

The reports to the Crown Office (instead of the police) were made against the express
wishes of both complainants and in direct conflict with the terms of the policy at
paragraph 19.

The leak of the story to the Daily Record on August 23 2018 was made with no
consideration of the impact on the complainants, impact which the Permanent
Secretary described in her evidence as causing considerable distress to all
concerned. That, of course, was in itself in direct contravention of the confidentiality
of the process promised to the complainants, and also to me.

However, it had been the Permanent Secretary’s own intention, despite police advice
to the contrary, to issue a press statement confirming the fact of the complaints on
Thursday 23 August 2018.

This Committee’s remit is to examine the actions of those in authority. Accordingly

the conduct of the Permanent Secretary and the civil servants and special advisers
involved is important. To claim, as the Scottish Government has done, that the wishes
and welfare of those who had made complaints were central to the decision making is
demonstrably untrue.

The leak to the Daily Record

In my view, the circumstances of the leak of the details of the complaints to the Daily
Record on 23rd/24th August 2018 should be thoroughly examined. It is highly likely
that the leak came from within the Scottish Government and, in all likelihood, from
one of the Special Advisers to the First Minister. The background facts may assist

The Permanent Secretary instructed her staff to send her Decision Report to the
Crown Agent on or about August 21st 2018

The Crown Agent, according to the police informed them of the Government’s
intention to release a story of the fact of the complaints to the press and the Chief
Constable and another senior officer advised against it and refused to accept a copy of
the report. We know, therefore, that the desire of the Scottish Government to get these
matters into the public domain is fully supported by evidence.

Despite this police advice, two days later the Government informed my legal team
they intended to release a statement at 5pm on Thursday 23 August 2018. We advised

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that we would interdict the statement pending our Judicial Review petition and the
statement was withdrawn. On the strength of that undertaking, we didn’t require to
seek interdict.

We were then informed at around 4pm that the Daily Record newspaper had phoned
the Scottish Government press office with knowledge of the story but had no
confirmation. At 8pm, the Record phoned and then emailed at 8.16pm claiming
confirmation had now been given and broke the story at 10pm. The second story they
printed on Saturday 23rd August 2018 contained specific details from the complaints
and demonstrates that they also had access to the Permanent Secretary’s decision
report or an extract from it.

This leak was (according to the ICO) prima facie criminal, deeply damaging to my
interests and those of the complainants and a direct contravention of the assurances of
confidentiality given to all. After I formally complained to the ICO, the conclusion of
the ICO reviewer assessing these facts was that she was “sympathetic to the thesis
that the leak came from a Government employee”. The only reason no further action
could be taken was because the specific individual could not be identified without
police investigation. I intend to return to that police complaint when this Committee
has concluded its review. I should say that I am confident that I know the identity of
those involved in the leak.

John Somers, The Principal Private Secretary to the First Minister confirmed that her
office had received a copy of the Permanent Secretary’s report in evidence on 1st
December 2020. However, that evidence was then corrected to say that it had not
been received. However, that is difficult to reconcile with the ICO review report
(paragraph 4.8) which list the PPS, and therefore The Private Office as one of the
stakeholders “who has access to the internal misconduct investigation report”.

It is unlikely that a leak to the Daily Record came from mainstream civil service. The
overwhelming likelihood is that it came from a Special Adviser to the First Minister
who had access to the report or an extract from it which was the basis of the Daily
Record story of August 25th 2018.

The question of ‘conspiracy’

It has been a matter of considerable public interest whether there was ‘a conspiracy’. I
have never adopted the term but note that the Cambridge English Dictionary defines it
as ‘the activity of secretly planning with other people to do something bad or illegal.’
I leave to others the question of what is, or is not, a conspiracy but am very clear in
my position that the evidence supports a deliberate, prolonged, malicious and
concerted effort amongst a range of individuals within the Scottish Government and
the SNP to damage my reputation, even to the extent of having me imprisoned.

That includes, for the avoidance of doubt, Peter Murrell (Chief Executive), Ian
McCann (Compliance officer) and Sue Ruddick (Chief Operating Officer) of the SNP
together with Liz Lloyd, the First Minister’s Chief of Staff. There are others who, for
legal reasons, I am not allowed to name.

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The most obvious and compelling evidence of such conduct is contained within the
material crown office refuses to release. That decision is frankly disgraceful. Refusing
to allow the Committee to see that material both denies me the opportunity to put the
full truth before the Committee and the public, and makes it impossible for the
Committee to complete its task on a full sight of the relevant material. The only
beneficiaries of that decision to withhold evidence are those involved in conduct
designed to damage (and indeed imprison) me.

From a very early stage in the Judicial Review the Government realised that they
were at risk of losing. By October they were told by external counsel that on the
balance of probability they would likely lose. This is the legal advice they have
hidden from the Committee in defiance of two parliamentary votes.

As the Committee has heard in evidence there were 17 meetings of the Committee
formed to monitor and plan the Scottish Government defence of the Judicial Review
between August 2018 and January 2019. Paul Cackette in his evidence said that there
were daily meetings while Ms Mackinnon suggested three times a week. Despite this
information being offered at the evidence session of 1st December no information has
been received by the Committee of any of these meetings. I believe there have to be
such emails which show the Lord Advocate’s advice on the possibilities of sisting
(pausing) the Judicial Review behind the criminal case. The advantage of doing so in
a context where the Judicial Review was likely to be lost was clear. Any adverse
comment or publicity about the illegality of the Scottish Government actions would
be swept away in the publicity of my arrest and subsequent criminal proceedings.

It became common knowledge in government, special advisers and the SNP that the
Judicial Review was in trouble for the Government and the hope was that police
action would mean that it never came to court, that the JR would be overtaken by the
criminal investigation.

In evidence Ms Allison on 15th September 2020 specifically denied that the Scottish
Government had any role in contacting potential witnesses or former civil servants
after the police investigation had started on August 23rd 2018. This is not true.

I enclose at appendix 2 a copy of an unsolicited email sent by Ms Allison herself to an

ex Scottish Government employee on August 27th who then received a further
unsolicited email from Ms Ruddick of the SNP the following day (appendix 3) The
individual concerned, who provided a defence statement, had never even been a
member of the SNP. I believe her contact details were given to Ms Allison by a
Government Special Adviser.

Another Special Adviser was in contact with the majority of people who thereafter
became complainants in the criminal trial, shortly after the story being leaked to the
Daily Record on August 23rd 2018.

In his evidence session of 8 February 2021 Mr Murrell spoke of the letter sent by the
FM round all SNP members on 27th August 2018. I pause briefly to note that despite
the email reaching 100,000 members, not one complaint about me was received in
response. However, what he did not disclose was the email round SNP staff and ex
staff members sent by his Chief Operating Officer from late August 2018 (enclosed as

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appendix 3). This email was sent selectively. Some staff members were targeted and
sent it. Others were not.

The recruitment of names to receive this email provoked opposition. Appendix 4

shows the refusal of a senior member of the SNP administrative team at Westminster
to supply names to HQ. The staff member expressed the view that she was not
prepared to take part in an obvious “witch-hunt” which would be incompatible with
her professional responsibilities as a lawyer. At Appendix 5 I enclose the terms of an
affidavit of the staff member who has agreed to have it shared with the Committee.
What is clear is that even at the time of the initial trawl for potentially supportive
individuals, there was profound disquiet about the ethics and legality of the approach.

In addition to advocating the “pressurising” of the police (those text messages are
public and before the Committee), Mr Murrell deployed his senior staff to recruit and
persuade staff and ex staff members to submit police complaints. This activity was
being co-ordinated with special advisers and was occurring after the police
investigation had started and after I ceased to be a member of the SNP. From the
description of the material released to the Committee under section 23 it is clear that
any supporting evidence establishing this point was not shared with the Committee by
the crown office. Why?

It was clear that defeat in the Judicial Review would have severe consequences.
Cabinet Ministers thought it should lead to the resignation of the Permanent
Secretary. The Special Adviser most associated with the policy believed that her job
was in jeopardy and accordingly sought to change press releases in light of that. The
First Minister’s team felt threatened by the process as did the civil service. The
documentary evidence shows that special advisers were using civil servants and
working with SNP officials in a fishing expedition to recruit potential complainants.
This activity was taking place from late August 2018 to January 2019, after the police
investigation had started.

The Judicial Review cannot be viewed in isolation. The effect of it, and its likely
result of a defeat for the Scottish Government led to the need to escalate these matters
to the police, even if that meant doing so entirely against the wishes of the two
women who had raised concerns. The Permanent Secretary’s “we’ve lost the battle
but not the war” message of January 8th 2019 to Ms Allison whilst on holiday in the
Maldives is not (as she tried to claim) a general appeal for equality but rather shows
her knowledge that there were further proceedings to come and her confidence that
the criminal procedure would render such a loss in the Court of Session irrelevant. I
note in passing, that such language is, in any event, totally incompatible with the role
of a professional civil servant.

The Role of the Crown Office

The Crown Office has intervened three times to deny this Committee information for
which it has asked.

This has been done by reliance on legislation which was never designed to obstruct
the work of a Parliamentary Committee acting in the public interest and investigating

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the actions of the Scottish Government. I know this to be true because I was First
Minister when the legislation was passed in 2010. The true purpose of s. 162 of the
Criminal Justice and Licensing (Scotland) Act 2010 was to prevent witness statements
falling into the hands of the accused and being used to intimidate or exert retribution
on witnesses and further because of instances of evidence ending up held or disposed
of in an insecure fashion. The basis of the legislation was Lord Coulsfield’s Report
(2007) and the intent was to clarify the legal requirements of disclosure and to
establish practical arrangements to prevent the misuse of disclosure. Thus section 162
(and 163) had nothing whatsoever to do with preventing relevant evidence being
presented to a parliamentary Committee and its misinterpretation as such by the
Crown Office is a profoundly disquieting development which strikes at the heart of
the parliamentary system of accountability.

On 17th September 2020 the Crown Office said that our proposal to the Committee to
identify the existence of documents which had not been provided by the Government
but which had been disclosed to me in the criminal case would be covered by Section
163 of the 2010 Act that “any person who knowingly uses or discloses information in
contravention of section 162 commits an offence”

Just in case we did not get the message he repeated the same point on 3 November
2020. On 17th December 2020 the Crown’s representative went further to block
information specifically requested by the Committee “For you or your client to
accede to the request of the clerk to the Committee would require both the use and
disclosure of said information. As such what is proposed would amount to a clear
breach of section 162 which, by reference to section 163 would amount to a criminal
offence”.

He then appears to suggest that the Committee itself would be in danger of

prosecution if we had acceded to the clerk’s request.

“Further, any person who received such information from you or your client would
also be in breach of section 162, and consequently section 163, if they use or disclose
that information. In these circumstances I do not consider what is proposed is
acceptable”

This is a letter from an unelected official citing legislation passed by this Parliament
for quite different reasons and using it to deny information to a Committee of elected
parliamentarians. Some of the information we intended to provide included
Government documents which should have been provided to the Committee in the
first place. This position is extraordinary and totally unacceptable.

Given this attitude to disclosure by the Scottish Government and Crown Office, it
becomes highly surprising that when this Committee exerted section 23 powers to
require documents it was given irrelevant information for which it had not asked and
could never be published while relevant information remained undisclosed. It is also
clear that Government SPADS were briefing the media on this information before
members had even seen it. This is not the behaviour of a prosecution department
independent of government influence.

13
The Lord Advocate said in his evidence on 17th November 2020 that he thought the
Committee has seen this correspondence. As far as I am aware this is not the case
Nevertheless, I am happy now to provide that correspondence if the Committee so
wishes. In his latest letter of 8th February the Lord Advocate pointedly fails to answer
the specific question from the Committee Convener of 3rd February seeking
confirmation that all Government records had been provided.

As was glaringly clear from his evidence and his inability to address the most basic of
questions, his denial of provision of the legal advice of external counsel, his costly
delay in settling the case, his refusal to confirm what the Committee eventually found
out that both Counsel threatened to resign from the case, the Lord Advocate is deeply
compromised between his twin roles as head of prosecutions and chief government
legal adviser.

However the matter goes further yet. The Permanent Secretary has confirmed in
evidence to the Committee that the referral to the crown office was contrary to the
express wishes of the complainants. In spite of his protestations that he recused
himself from anything to do with the criminal investigation. I believe that the
Committee should ask the Lord Advocate directly whether he instructed two
unwilling complainants to make police statements.

Secondly the Committee has heard of the highly unusual route via the Crown Agent
that the Permanent Secretary ordered her staff, against the wishes of the complainants,
to present her report to the Chief Constable. Crown Agent David Harvie’s line
manager at that time was Leslie Evans, the Permanent Secretary.

The Crown Office under current leadership is a department simply not fit for purpose.

Summary

The procedure was devised when the Permanent Secretary, as decision maker, had
knowledge of emerging complaints against me. From the outset the Permanent
Secretary was compromised and should not have taken on that role.

The procedure was unsound not just in its implementation but in its genesis. It was
devised “at pace”, probably with the purpose of progressing complaints against me
and certainly without proper care or regard to its legality or effective consultation
with the unions.

The documents disclosed to the Committee demonstrate further serious abuses of

process by both the Investigating Officer and the Permanent Secretary.

In a further breach of the duty of candour the Government owed to the Court, those
documents were not made available at Judicial Review.

The Investigating Officer had not just “prior involvement”, but subsequently regular
contact with the complainants of a nature and level which was self-evidently
inconsistent with that of an impartial official.

14
The Permanent Secretary who in her own words “established” the procedure met or
spoke to both complainants on multiple occasions (including in mid process) and
failed to disclose this in either the civil or criminal case.

The procedure was conceptually flawed and would have collapsed on principle even
if it had been properly implemented. It is a retrospective, hybrid policy, which claims
jurisdiction over private citizens who might have no connection whatsoever with the
Scottish Government and shows complete confusion between the legitimate roles of
Government and political parties.

It is demonstrably unfair. It transgresses the most basic principles of natural justice in

not even allowing the person complained about the right to prepare their own defence.
In addition, the Permanent Secretary denied access to civil servants, witness
statements or even my diaries until they were pursued in a subject access request.

The Government wasaware at a very early stage that they were at significant risk of
defeat in the Judicial Review, and by October 2018 were advised that, on the balance
of probabilities, they were likely to lose. Nevertheless they kept the clock running and
the public ended up paying over £600,000 as a result.

This information on likely defeat in the JR was communicated to key decision makers
– the Permanent Secretary, First Minster, the Lord Advocate, the Chief of Staff- in
meetings with external Counsel through October and November 2018.

The interests of complainants were disregarded by the Government in refusing

mediation initially without consultation, being given no consultation whatsoever on
the possibility of arbitration, being given false assurances on the Government
accepting their clear view against reporting matters to the police and then sending the
report to the Crown Office against their express wishes. The Government didn’t even
instruct counsel to attend court for the procedural hearing to address my application
to guarantee the anonymity of complainants.

The Crown Office has blocked key information coming to this Inquiry by wilfully
misinterpreting legislation designed for other purposes.

The Lord Advocate is manifestly conflicted in his roles as both Government legal
adviser and prosecutor.

The advice of the Lord Advocate at one stage included, for example, the option of
sisting (pausing) the Judicial Review to allow a criminal case to overtake the JR
proceedings. A consequence of this happening would have been to protect the
government from the catastrophic damage arising from losing the judicial review and
a finding of unlawful conduct.

This prospect provided an incentive and imperative for the recruiting and
encouragement of police complaints from others.

This was done by the closest advisers to the First Minister and senior SNP officials
actively involving civil servants AFTER the police investigation had started.

15
The Permanent Secretary ordered her decision report to be sent to the Crown Agent,
David Harvie, against the terms of the policy and the wishes of the complainants. At
that time I understand that she was his line manager.

Against police advice the Permanent Secretary decided to press release the fact of
complaints on Thursday 21st August 2018. That publication was only prevented by
threat of legal action by my solicitors.

A matter of hours later, there was what the ICO assessed as a prima facie criminal
leak of information including details of complaints to the Daily Record, in breach of
my rights of confidentiality, and those of the complainants. Such action was also
contrary to the express assurances of confidentiality offered to all parties and central
to such workplace issues.

The Judicial Review was only conceded when both Counsel threatened to resign from
the case

The policy and actions of the Permanent Secretary and the Government were accepted
as and then judged as “unlawful”, “procedurally unfair” and “tainted by apparent
bias”.

The real cost to the Scottish people runs into many millions of pounds and yet no-one
in this entire process has uttered the simple words which are necessary on occasions
to renew and refresh democratic institutions - “I Resign”.

The Committee now has the opportunity to address that position.

Rt. Hon. Alex Salmond

17th February 2021

16
 Appendix 2

From: Alex Salmond [Redacted]

Sent: 15 February 2021 03:07
To: David McKie [Redacted] ; Duncan Hamilton [Redacted]
Subject: APPENDIX 2

From: [Redacted]
Date: August 27, 2018 at 7:46:13 AM GMT-5
To: REDACTED
Cc: [Redacted]
Subject: Personal

Hello (REDACTED)

I am not sure if you will remember me. I was Director of People/HR at the time you
worked with Scottish Government. I hope that this finds you well.

You may be aware that there has been considerable media coverage here over the
past few days in connection with the former First Minister. We are aware that this
coverage has been quite upsetting for some people and we are keen to support in
any way we can.

Your name and email address has been provided by a current employee at the
Scottish Government, noting that you were someone who worked with Scottish
Government previously and they were keen to ensure that you were offered any
support you may require.

I would be very happy to have a chat by phone or by email and put you in touch with
the various support channels if that would be helpful.

Kind regards

Barbara

BARBARA ALLISON,
Director, Communications, Ministerial Support and Facilities
Scottish Government.
Tel: [Redacted]

Sent from my iPad

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Appendix 3
Appendix 5