JIM SILLARS ANALYSIS

Analysis: Parliamentary Committee Inquiry

cross-reference with Hamilton

Jim Sillars

The parliamentary committee report has 187 pages; 734 paragraphs of  Committee assessment of evidence and its judgement; 11 pages devoted to the evidence from the two women civil servants; and a number of annexes. 

The report’s every word  is the unanimous verdict of the Committee. There are no dissenting notes from any member. The SNP cannot disown it. 

It is well  written and contains no evidence of the First Minister’s conspiracy theory that a majority of the members set out to damn her before they heard her evidence under oath. 

This analysis is of those parts where the principals are seen to be involved – the Permanent Secretary and the First Minister, and the two women civil servants. “P” indications a Committee report paragraph. Hamilton’s is identified with  “H.”  

The Hamilton report is not well written, something unavoidable due to the very large number of redactions, something that he himself finds disturbing.  Because of the redactions there are sections where it is impossible to know what was being examined or reported. However, there are sections, not redacted, that if cross-referenced with the Committee report, are revealing. 

The First Minister and Permanent Secretary

P599 is particularly damaging for the Permanent Secretary. I exclude from this analysis as it is now going to be at the centre of Alex Salmond’s civil against her. 

P718, and P720 are where the First Minister is unambiguously declared to have twice misled the Committee. In P720 the Committee state a belief that  there is a potential breach of the Ministerial Code. This is separate from the matters examined by Mr. Hamilton.

The Scottish Government to the Committee:

Catch us if you can

The Committee record in paragraph after paragraph how difficult it was to get the Scottish Government to produce the material asked for; and that when it did come, there were redactions that made it nigh on impossible to understand it, with “pages after pages of full redacted texts.”. 

P60. “The Scottish Government, as will be explored in the section on access to legal advice, has now waived legal professional privilege over certain documents. It would have been preferable for the Scottish Government to review the redactions in documents already provided to the Committee to assess whether some or all of them could have been lifted. However, because the waiving of legal professional privilege took place at such a late stage, we would have no time to consider this even if the Scottish Government did undertake a review. This is a very unsatisfactory position to be in”   (Committee’s emphasis)

P62. Examples: “….the Committee was only informed by the Scottish Government in a letter from the Deputy First Minister of 6 November 2020 that the Principal Private Secretary to the First Minister had held two meetings with Ms A on 20 and 22 November 2017. These meeting had not been revealed in any previous material provided to the Committee by the Scottish Government……The Committee only found out about these meetings after asking the Scottish Government why the Principal Private Secretary to the  First Minister had been due to give evidence to the Commission and Diligence in the judicial review.” 

P113. The Committee record that it was “frustrated” by Alex Salmond’s“repeatedly missed deadlines set for the submission of evidence.” But make to reference to the Crown Office threatening him with prosecution if he told all he knew. It should be incumbent on a Parliamentary Committee seeking evidence to provide legal cover for a witness to comply with its remit. But there is no reference to such a responsibility.  

The judicial review

Who kept a lost cause going at public expense?

Dealing with the handling of the judicial review, the Committee engaged in a detailed examination of how it developed, and ended with the maximum damages awarded to Alex Salmond. 

P594. “By 31^st. October 2018 senior external counsel had concluded that the Government would likely lose the judicial review. That assessment only  worsened as the case progressed and prior contact between the Investigation Officer and the complainers emerged. The Committee is also concerned that the First Minister decided to proceed with the judicial review despite clear advice that it would likely fail.” (Committee emphasis)

Who knew when and who told the truth?

In comes Hamilton with the birthday party…..and more

H 6.9. Nicola Sturgeon claimed to the Committee that she had not told the Parliament about her meeting with Geoff Aberdein on 29th March 2018, because she had forgotten about it. But she gave Hamilton details. “we were outside (her office) there doing a birthday cake, singing happy birthday and Geoff had asked for a word and we went into my office………………..From memory, I don’t think it was a particularly long conversation but it took place in my office.”

Although she claims to not remember much about the meeting, there is long section in that paragraph in the Hamilton report, not redacted, in which she goes into considerable detail claiming it was all about Alex Salmond’s state of mind, but also: “That’s basically, I had a general sense that it was something serious, something in the realms of a sexual complaint potentially and he was very upset about it but I agreed, we didn’t set the date of the meeting with Alec (sic) at that point, that was (arranged) over the weekend.”

H 6.11. Hamilton: “I find it very hard to know what to make of this story about the birthday party. Mr Aberdein’s account to me was very convincing. Equally the First Minister seemed both convinced and convincing in her account. It may be that REDACTED and more REDACTED until “have been” REDACTED followed by “However; this is speculation and it would probably not be right to place too much significance on the matter.”  Make what you can of that mince.  

It is a pity Hamilton never met my brother, whom I recall explaining to me how if people want to tell a lie, they first convince themselves it is true, and then for them it becomes truth.   

But what was “REDACTED” cannot avoid that she was not afflicted with amnesia, and knew it was about something sexual. But was it about government or party?

H 7.2. Nicola Sturgeon: “On 2 April he informed me about the complaints against him, which – of course – in line with the procedure, the permanent secretary had not done.”

H 7.11: “She did deny that that the meetings were Government  which she explained on the basis that she had no responsibility for operating the Government’s harassment complaints procedure and indeed no knowledge of the complaints except for what Mr. Salmond told her.”  

H 8.6: The First Minister states that she suspected the reason Alex Salmond wanted to see her on 2 April was that he was facing an allegation of sexual misconduct………………….She says that her discussion with Mr. Aberdein on 29 March 2018 may have contributed to her suspicion.”  That does not square with her claim to have completely forgotten  the meeting with Geoff Aberdein on 29^th March. 

But let us consider the question of whether Nicola Sturgeon lied to the Parliament about the meeting on 2 April. 

P672 & 673. Committee: “on 8 January 2019, the First Minister told the Parliament –

​‘The contact that I had with Alex Salmond, the dates of which I have

set out today, were not Government meetings. I have known Alex Salmond as a friend and colleague for 30 years, and he was then a member of my party, although he is not at the present time. ‘

“On 10 January 2019, she told the Parliament “…like other party leaders here, I have responsibilities as leader of my party and I took part in meetings in that capacity.”

H 8.8: referring to the 2 April meeting: “it could not in my opinion be characterised as a party meeting. Members of political parties do not ordinarily attend party meetings accompanied by their lawyers, and when the First Minister’s husband, who is chairman (sic) of the SNP, arrived home, he did not join the meeting. In fairness the First Minister did not seek to make any case to me that this was a party meeting.” Unlike what she told the Parliament. 

So, her claim that she held the 2 April meeting in her capacity as party leader, making it a party meeting, was a straight lie. 

Did she promise to intervene at the 2 April meeting ?

H 8.11 has its comical moments of that meeting.. Here is Nicola, with her suspicion already aroused about  Alex Salmond being accused of something sexual, on being told it was so: “My head was spinning and I was dealing with complicated emotions…………it is entirely possible that you say things like ‘I’d love to help if I could’ – people say that kind of thing. This was a human situation.’” 

This was her explanation why Alex and his two witnesses Geoff Aberdein and Duncan Hamilton were sure she promised to intervene. 

We are asked to believe that the First Minister, a hard bitten politician with years of experience in the most senior government positions, who already had suspicions about Salmond and sexual allegations, had her head in a spin and might have got as bit loose with her language.  

P666  Her version to the Committee makes no reference to her head being in a spin, but then she was talking to equally hard bitten politicians,  not likely to believe the mind-spinning story, and be as naïve as Mr. Hamilton. 

Indeed, it seems the head did not spin for long, if at all. P681, Nicola: “I was very firm when, as I have set out, in the first meeting he informed me of the complaints and when, after that, he made me aware of the concerns he had about the process and that he was proposing mediation and arbitration.”

P687: Duncan Hamilton stated “‘I can confirm that the First Minister did offer to assist. We discussed mediation. My clear recollection is that her words were “if it comes to it, I will intervene’”

Some will be too young to remember the hilarity that greeted the defence Bill Clinton put up when confronted in a Grand Jury about having sex with Monica Lewinsky: “It depends on what the meaning of the word ‘is’ is.”

P688: Nicola’s Clinton defence: ‘I do not know what “if it comes to it” would mean in the context of what we are dealing with. If it comes to what?’  But she went on “I am trying to process it all in my mind as I go, and maybe I express myself in ways that I should not have done. I am not saying that I did not, but I believe that I was clear that I could not, and would not intervene in this process.”(my emphasis)

Out of that convoluted mishmash of words, any reasonable person would be right to assume that Duncan Hamilton’s “if it comes to it” meant “if it comes to it I will intervene.”

She sought to cement her claim of never intending to intervene by not having intervened. Perhaps on this occasion her Chief of Staff gave post-meeting sensible advice. The Committee never had the chance to question her under oath as to what was or was not said at the meeting

But not intervening later, does not disprove that she did promise, at the meeting, to intervene. The Committee had no doubts. 

P720. “The Committee notes that there is a fundamental contradiction in the evidence in relation to whether, at that meeting on 2 April 2018, the First Minister did not agree to intervene. Taking account of the competing versions of events, the Committee believes that she did in fact leave Mr. Salmond with the impression that she would, if necessary, intervene. This was confirmed by Duncan Hamilton who was also at the meeting.  Her written evidence is therefore an inaccurate account of what happened, and she has misled the Committee in this matter, and there is a potential breach of the Ministerial Code under the terms of section 1(3). (my emphasis)

The Committee on Nicola and the Ministerial Code

More than a shade different from Hamilton

P716. “For all of these reasons the Committee believes the James Hamilton report is the most appropriate place to address the question of whether or not the First Minister has breached the Scottish Ministerial Code.”(committee emphasis)

P717: “For its part the Committee has some observations about the evidence we have collected on the Ministerial Code phase of its inquiry.”

P718: “The Committee finds it hard to believe that the First Minister had no knowledge of any concerns about inappropriate behaviour on the part of Mr. Salmond prior to November 2017. If she did have such knowledge, then she should have acted upon it. If she did have such knowledge, then she misled the Committee.” (my emphasis)

This is the leaked para. that caused Nicola Sturgeon to make a full frontal attack on the majority in the Committee as biased before she gave evidence. Why didn’t the SNP members of the Committee tell her it was unanimous? Feart? 

P721 contains a rebuke and a lesson on how to be First Minister. Referring to the meeting on 2 April and subsequent meetings with Alex Salmond: “She should have made the Permanent Secretary aware of her state of knowledge of the complaints and the facts of the meetings at the earliest opportunity after 2 April at which point, she should have confirmed that she would cease to have any further contact with Mr. Salmond on that subject.”

It is a wonder that her Chief of Staff did not so advise her, given that she was at the meeting on 2 April and is the person whose function is to spot problems early. 

P732 ……”Had there been full disclosure of all relevant information at the outset of this Inquiry, our job would have been easier, our task accomplished quicker and our conclusions more comprehensive. If such inquiries in future are not to be afforded such full disclosure, then the Committee believes that only a judge-led inquiry would have the powers to investigate matters to the full extent.”(my emphasis)

The two women civil servants

These two women have had a hellish three years. That is clear from the evidence they gave, in private, under oath, to the Committee recorded in 11 pages. They expected, in making their allegations against Alex Salmond, it would be dealt with internally within what was promoted to staff as a new sexual harassment    policy. Through incredible blunders by the Permanent Secretary, other civil servants, and the First Minister, and in fighting the lost cause of the judicial review, they were denied what should have been their right. Instead they found themselves having to go through the trauma of a criminal trial, without any support thereafter from the Government that took their complaint, albeit with their consent, to the Crown Office.

Provision of information and sources of support

Para 23. Both MsA and MsB were asked about information provided to them throughout the process of their complaint and the judicial review. “Both witnesses said they had been reassured throughout and that they did not have ‘”any comprehension that things were going wrong”’

Para.27. One of the witnesses told the Committee: “More expert support would have been helpful, in particular around the police referral. I found it very frustrating. I had particular concerns that it would have been invaluable to be able to discuss with somebody from Police Scotland or somebody who had retired from Police Scotland –somebody with direct experience, to allow me to have a frank discussion. Instead I went through HR as an intermediary, and everything was discussed in general terms rather than engaging on the specifics of the case, which just meant that I was operating quite blind.”

Para 29. Neither woman received support from the Scottish Government since the conclusion of its process. “We were given regular updates over the period of the judicial review, but after that we were basically just dropped. 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. There might be good reasons for that, but I certainly expected something given that the Government initiated the police referral and given the duty of care for us……………..I was quite taken aback because I felt as though we were just left to swim.”

One can only conjecture whether  MsA and MsB would have acquiesced in their case going to the police, and the trauma of a trial, if they had been advised by a former senior policeman or policewoman with experience, or an experienced lawyer, rather than through a civil service department whose ultimate head, the Permanent Secretary, could hardly wait to get  their complaint to the  Crown Office in her opening salvo of her “war” on Alex Salmond. 

Para 47. “It has been extremely upsetting to see that something that we entered into  in good faith with the intention of making things better for people in future has actually been detrimental not just to the chances of  their wanting to raise complaints in the future but to people’s mental health, because of the coverage of this.”

Reading their testimony, there are questions for the Permanent Secretary and the First Minister to answer, because it was they who contested the judicial reviewand the former who went post-haste to the police (doubtful if FM not consulted). 

One. Did they use MsA and MsB as pawns? Two, why when Nicola Sturgeon has claimed that her concern all along was the women, was a duty of care not exercised by providing them with specialist legal advice on whether, on the basis of their complaint, there was or was not the chance of a conviction, before they the police were called in and they faced the trauma of a criminal trial?

Three, why were they not provided with the kind of expensive specialist legal advice similar to that given to the Chief of Staff, and the civil servants who faced, not a criminal trial, but the Committee of Inquiry? 

It should be noted that when their complaints went before a jury, with a female majority, they did not meet the standard of criminality. 

Conclusion

I have no doubt the SNP leadership think that with the Hamilton and Committee reports published, that the headlines they generated will be all, and finished. Wrong.

The Permanent Secretary faces being on oath, not in the benign atmosphere of a committee room in Holyrood, but in a court being cross-examined by a skilled interrogator. A court where all the relevant documents will need to be delivered to Alex Salmond’s lawyers without pages and pages of redactions. 

The First Minister is unlikely to avoid being a witness in that case, under the same kind of examination. 

Then there are the two counts of the First Minister misleading the Committee, with one definitely going to another Ministerial Code inquiry after the election. 

Nicola Sturgeon is reported as saying she will be “Haunted” for the rest of her life after an error by the Scottish Government “let down” the two women. I suspect she will be haunted by more than that in the months ahead. 
JIM SILLARS.

My Comment

Once again I am indebted to Jim for the work he has put into this thorough analysis. It provides a glimpse of the many unaddressed issues and evidence that will be examined in the forthcoming civil case where few if any redactions will be permitted and the Judge will get a much more rounded and open view of the entire debacle. We must not prejudge but a very different outcome must be a strong possibility. Folk may wonder why with the multitude of talented elected representatives at both Westminster and Holyrood not one has tried to put together a comparable paper showing the Scottish Government in a positive light. I am sure they have their reasons.

This will be my last article that I will publish on the topic of the Inquiries as long as any ceasefire is respected. It probably makes sense given that further legal action is pending and the Scottish General Election is upon us.

I am, as always

Yours for Scotland.

Free subscriptions to this site can be secured by pressing either the Home or Blog pages of this website and completing the simple instructions. You will be most welcome.