Scottish Government probe against Linlithgow’s Alex Salmond ‘was illegal’

Photo by Jeff J Mitchell : Getty
Photo by Jeff J Mitchell : Getty

The former First Minister Alex Salmond has won his battle against the Scottish Government for the way it conducted an investigation into sexual misconduct complaints against him.

The 63-year-old politician was told on Tuesday that civil servants had conducted an “illegal” probe” against him which had been unfair and “tainted with bias.”

The former SNP leader said he felt vindicated by a decision made by government lawyers not to contest a judicial review which he had brought to court.

Mr Salmond believed the Holyrood administration had acted unlawfully in the way it probed allegations that he acted inappropriately with two women.

And on Tuesday, Mr Salmond said the Holyrood administration had made an “abject surrender” when it decided not to contest the judicial review.

He also called on the Scottish Government’s top civil servant Leslie Evans - who overseen the probe - to “consider her position.”

Mr Salmond - who is being investigated by the police over the sexual misconduct allegations - told reporters outside the Court of Session that he was happy the case was over.

He added: “The last time I was in that court it was to be sworn in as first minister of Scotland.

“I never thought it possible that at any point I would be taking the Scottish Government to court.

“Therefore, while I am glad about the victory which has been achieved today, I am sad that it was necessary to take this action.

“Because the process was agreed to be unfair and unlawful and tainted with apparent bias then the Scottish Government have had to concede on the case and the expenses to the maximum extent

“That is going to raise the cost to the public purse to many, many hundreds of thousands of pounds.

“And all of this was unnecessary because throughout the process, we also had mediation and legal arbitration so the matter could be settled without having to come to the highest court in the land.

“At every stage, that was rebuffed by the permanent secretary. I noticed that in the their submissions that the advocate for the government said that the government accepted institutional responsibility - not personal but institutional responsibility - and therefore I suggest that the permanent secretary to the Scottish Government now accepts that responsibility and considers her position.”

The complaints against Mr Salmond had been made last year. It is understood the complaints relate to Mr Salmond’s alleged behaviour in 2013.

Lawyers for Mr Salmond told judge Lord Pentland on Tuesday that the Scottish Government had come to an agreement with them about the investigation being “tainted with bias” and “unfairness”.

Advocate Ronnie Clancy QC said that the Scottish Government’s legal team had conceded that it acted unlawfully when probing allegations that he acted inappropriately with two women.

Mr Clancy said that the Scottish Government breached its own guidelines on how to investigate such complaints.

He said that Judith Mackinnon - the Human Resources employee - who conducted the investigation should never have been appointed to the position.

Mr Clancy said that this was because Ms Mackinnon had spoken to the two women before the investigation began.

The court had heard on an earlier occasion that the government’s own policy stated that an employee with no previous knowledge about the case should conduct the probe.

He said that Ms Mackinnon had a “significant amount of direct personal contact” with the complainers.

Mr Clancy said that the meetings saw the Scottish government employee indulge in behaviour which bordered on encouraging the women to proceed with complaints against Mr Salmond.

The advocate also said that Ms Mackinnon was “actively involved” in drafting the Scottish Government’s complaints procedure.

Mr Clancy told the court this meant the investigation into Mr Salmond’s alleged behaviour was “biased” and tainted by illegality.

He said: “There was a significant amount of direct personal contact between the investigating officer and the complainers.

“The substance of their complaints was discussed at the meetings. The complainers were told about the ways in which they could go onto make formal complaints - the way in which the matters with the complainers bordered on encouragement for them to proceed to with formal complaints.

“It strayed into the realms of giving them encouragement to do so.

“We say that because of this the investigations cannot stand. It is unfair. It is illegal and unlawful.”

The Scottish Government’s lawyer Roddy Dunlop QC told the court that the investigating officer was a “dedicated HR professional” who acted in “good faith” throughout the process.

He added: “There is institutional responsibility for the failure. No individual is being offered for sacrifice.”

However, Mr Dunlop said his clients accepted that Ms Mackinnon had some contact with the two women before being appointed as an investigating officer.

He said this had caused the government to accept there had been a “failure” in one aspect of the investigation and that people could form the impression that it hadn’t been acting impartially.

Mr Dunlop also told the court that the government didn’t accept that Ms Mackinnon had been assisting the complainers or encouraging them to make complaints about Mr Salmond’s alleged conduct.

He said that the government only believed the investigation against Mr Salmond was unlawful only in relation to the appointment of Ms Mackinnon being appointed as investigating officer.

Mr Dunlop added that the government believed the women were “credible and reliable” witnesses.

He added: “It is the only part of the petition which is conceded.”

Lord Pentland then pronounced declaratory that the Scottish Government’s probe was unlawful and tainted with bias.

Speaking outside court, Mr Salmond maintained he was innocent of any sexual misconduct. He said he now wanted to rejoin the SNP.

He also thanked the 4,000 people who contributed more than £100,000 through a crowdfunding initiative to help pay his legal bills. The remaining cash will now be donated to good causes in Scotland.

Mr Salmond also said he was concerned by apparent leaks regarding the complaints made by the women.

In a statement released after the case, Ms Evans said she wanted to “apologise to all involved for the failure in the proper application” of the complaints procedure. She also said she wanted to apologise to the complainers.

She added: “There is nothing to suggest that the investigating officer did not conduct their duties in an impartial way.

“Unfortunately the interactions with the complainants in advance of the complaints being made meant that the process was flawed, however, impartially and fairly the investigating officer conducted the investigation.”

Ms Evans also said that the Scottish Government could still reinvestigate the complaints. She said that the government would consult the complainers effort deciding to proceed.

Ms Evans said that such an investigation would only be carried out after the police investigation into Mr Salmond’s behaviour had been concluded.