THE FABIANI WHITEWASH AND THE COURT ORDER

I’ve been asked if I can make still clearer why it’s a big deal that the Fabiani Report has shown such utter contempt for the truth, as detailed in my last post.

The court order

The following is part of the court order, called an “interlocutor”, made by Lord Pentland at the Court of Session on 8 January 2019, when the court granted Alex Salmond’s application for judicial review against Leslie Evans and the Scottish Government:

“The Lord Ordinary … finds and declares that the decisions of the first named respondent, viz. Leslie Evans … are unlawful in respect that they were taken in circumstances which were procedurally unfair and in respect that they were tainted by apparent bias by reason of the extent and effects of the Investigating Officer’s involvement with aspects of the matters raised in the formal complaints against the petitioner prior to her appointment as Investigating Officer in respect of each of those complaints…” [my emphasis]

In other words, the one specific reason given by the court for finding the actions of Leslie Evans and the Scottish Government unlawful was that the Investigating Officer in the formal complaints of Ms A and Ms B involved herself in matters raised by the formal complaints before she was appointed to investigate them.

That is to say, the one specific reason the Fabiani inquiry was given when it was set up to investigate the unlawful behaviour of Evans and the Scottish Government was the prior involvement of the Investigating Officer, Judith Mackinnon, in the formal complaints of Ms A and Ms B.

But, instead of investigating that prior involvement in the case of Ms B, the Fabiani inquiry has decided that one vital part of the prior involvement just didn’t happen.

The facts, again

It is an established fact that Ms B made her formal complaint directly to Judith Mackinnon by email at 1.56 pm on 24 January 2018.

The Fabiani Report acknowledges this fact:

“24 January 2018: … Ms B’s formal complaint is … received by email.”

It is also an established fact that Judith Mackinnon, who later acted as Investigating Officer, had prior involvement with Ms B on 23 and 24 January 2018.

Again, the Fabiani Report acknowledges this fact:

“23 January 2018: … A call is arranged between [Mackinnon] and Ms B for the following day.

“24 January 2018: The Head of People Advice [Mackinnon] … and Ms B speak on the phone. Ms B’s formal complaint is subsequently received by email.”

So this is a prime example of exactly the prior involvement set out in Lord Pentland’s interlocutor – you know, the one that the whole Fabiani inquiry is based on.

It’s a prime example of the unlawful conduct that the whole Fabiani inquiry is supposed to be investigating.

But instead of investigating it, they find, as a fact, that it just didn’t happen.

They find that there was no prior involvement on 23 and 24 January 2018 because Judith Mackinnon was somehow, magically, appointed as Investigating Officer before Ms B’s formal complaint was ever received:

“The Director of People [Nicola Richards] appointed the Head of People Advice [Judith Mackinnon] as the Investigating Officer under the procedure. This appointment was made on 23 January 2018 in relation to the complaint made by Ms B”

By finding an obvious falsehood as a fact, they avoid any engagement whatsoever with the very unlawfulness they’re supposed to be investigating.

This is in blatant contradiction of Lord Pentland’s order.

By a Committee of the Scottish Parliament.

In a democracy governed by the rule of law, that should have some kind of consequence.