No Fault, No Blame, No Records

The Mirror's political editor (Pippa Crerar) is not impressed by Boris Johnson having an 'off the record' meeting with Alexander Lebedev - rightly so, in my view.

Though it's worth noting that Nicola Sturgeon's infamous meeting with Alex Salmond (in April 2019) was also 'off the record' - despite being arranged by the First Minister's chief of staff.

Incredibly this meeting took place in Nicola Sturgeon's family home and was attended by Alex Salmond, Alex Salmond's former chief of staff and Alex Salmond's legal counsel.

Yet no notes, records or minutes were kept to confirm what went on - even though the meeting discussed official Scottish Government business and the investigation that was already underway into complaints against Mr Salmond.

Astonishing behaviour by any standards which I said on the blog at the time.   

Salmond-Sturgeon Saga - No Fault, No Blame, No Records (March 23, 2021)

Attached below are two sections from the Hamilton report regarding the Salmond-Sturgeon saga and Scotland's ministerial code which deal with their initial meeting on 02 April 2018. 

For some reason James Hamilton sidesteps an earlier meeting on 29 March 2018 setting up the April 02 meeting which Nicola Sturgeon failed to include in her original statement to the Scottish Parliament on 8 January 2019.

While acknowledging that the First Minister's omission could be regarded as misleading Hamilton states at Paragraph 7.11 that:

"It is for the Scottish Parliament to decide whether they were in fact misled."

Moving on to the substantive 02 April meeting the relevant sections of the Ministerial Code are Paragraphs 4.22 and 4.23

4.22 Ministers meet many people and organisations and consider a wide range of views as part of the formulation of Government policy. Meetings on official business should normally be arranged through Private Offices. A private secretary or official should be present for all discussions relating to Government business. Private Offices should arrange for the basic facts of formal meetings between Ministers and outside interest groups to be recorded, setting out the reasons for the meeting, the names of those attending and the interests represented. A monthly list of engagements carried out by all Ministers is published three months in arrears.

4.23 If Ministers meet external organisations or individuals and find themselves discussing official business without an official present – for example at a party conference, social occasion or on holiday – any significant content (such as substantive issues relating to Government decisions or contracts) should be passed back to their Private Offices as soon as possible after the event, who should arrange for the basic facts of such meetings to be recorded in accordance with paragraph 4.22 above.

Hamilton states at Paragraph 15.5 of his report that this meeting could not be characterised as an SNP meeting despite what the First Minister claimed in her statement to the Scottish Parliament on 8 January 2019. 

The purpose of the meeting was to discuss official Scottish Government business (ie the harassment complaints process) and in the normal course of events this would have been covered by the requirement to keep a record of events under Paragraphs 4.22 and 4.23 of the Ministerial Code.

Hamilton goes on to say in Paragraph 15.3 of his report: 

"Ministers must have numerous contacts every day which are not required to be recorded under this provision. The other highly significant aspect of this provision is that it applies only to “contacts with external individuals and organisations, including outside interest groups and lobbyists.” (Emphasis added)."

Yet this was an extraordinary rather than a routine meeting of no particular interest or merit - it took place in the First Minister's family home and everyone present had obvious links to the SNP even though they were all discussing Scottish Government business. 

The Ministerial Code itself does not contain the following caveat introduced by Hamilton:

"Ministers must have numerous contacts every day which are not required to be recorded under this provision."

Now this may be true for chance or meaningless encounters with Ministers, but I fail to see how this applies to a high level meeting with Salmond's lawyer present, a former SNP MSP himself of course.

Hamilton's reasoning for his confusion comes at Paragraph 15.5 where he states:

"I fully accept 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."

Yet even though it was perfectly possible and sensible for the First Minister to make a contemporaneous note of what had occurred at this meeting she failed to do so.

Whether such a note should have been shared immediately after the event is debatable but there is no evidence to suggest that this would have risked prejudicing the proceedings or interfered with their confidentiality - any more than the ongoing dialogue which took place (directly and indirectly) with Alex Salmond during March, April, May, June and July 2018.

So it seems unarguable to me that the 02 April 2018 should never have taken place, as it crossed an important dividing line between party and government - even afterwards the professional, honest and transparent thing to do was to record, in writing, what went on yet this never happened.    

  

8. The meeting of 2 April 2018

8.1. The following facts concerning the meeting of 2 April are not in dispute: the meeting took place in Ms Sturgeon’s home in Glasgow. The meeting took place at Mr Salmond’s request and with the First Minister’s agreement. Present in the house were the First Ministerher Chief of Staff, Ms Lloyd, Mr Salmond, and Mr Aberdein. Mr Duncan Hamilton, an advocate retained on behalf of Mr Salmond, was also present; his attendance had not been notified to the First Minister in advance. Mr Peter Murrell, the husband of the First Minister and Chief Executive Officer of the SNP arrived home while the meeting was still taking place but took no part in it.

8.2. The meeting was in two parts, a discussion between the First Minister and Mr Salmond on their own followed by a meeting at which all five persons were present. The first part of the meeting was in private because Mr Salmond ini- tially asked to see the First Minister privately. No permanent civil servant was present at any part of the meeting. The meeting was a lengthy one; the First Minister estimates between one and two hours; Mr Aberdein describes the first part of the meeting at which only the First Minister and Mr Salmond were pre- sent as lengthy.

8.3. The First Minister has stated that at the meeting Mr Salmond told her that complaints against him were being investigated under the Procedure. At that meeting, he showed her a copy of the letter he had received informing him of the complaints. He shared the details of the complaints made against him un- der the Procedure with her and gave her his response to them.

8.4. Notwithstanding the suspicions she had harboured going into this meeting, the First Minister describes herself as shocked and upset by the reality of what she read. Mr Salmond gave her his reaction to the complaints. In the main he denied them, though in relation to one matter he said that he had previously apologised and considered it out of order for it to be raised again, and said that it was his intention to seek a process of mediation between himself and the complainers. It was also clear, contrary to what the First Minister had antici- pated, that he did not intend to resign his party membership or do anything to make the matter public at that stage.

8.5. The First Minister states that as it was clear to her then that these were complaints under the Scottish Government’s Procedure, she knew that she had no role in the matter and would not be made aware of it by the Permanent Secretary until any investigation concluded. She states that she was clear to Mr Salmond that she would not intervene.

8.6. The First Minister states that she suspected the reason Alex Salmond wanted to see her on April 2 was that he was facing an allegation of sexual misconduct. The principal reason for this was the “lingering suspicion” she had formed following the alleged incident reported by Sky News on 13 November 2017 and referred to in paragraph 9.1. above. She says that her discussion with Mr Aberdein on 29 March 2018 may have contributed to her suspicion.

8.7. In answer to the question why, if she suspected the nature of what Mr Salmond wanted to speak to her about on 2 April, she nevertheless agreed to the meeting, she states that the reasons were both personal and political. She thought Mr Salmond might be about to resign from the SNP and that, as a result of this or other aspects of how he intended to handle the matter he was dealing with, the party could have been facing a public/media issue that the SNP would require to respond to. As Party Leader, she considered it important that she knew if this was in fact the case in order that she could prepare the party to deal with what would have been a significant issue. As to the personal aspect Mr Salmond has been closer to her than probably any other person outside her family for the previous 30 years, and she was being told he was very upset and wanted to see her personally.

8.8. Although I accept the First Minister’s statement 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. Members of political parties do not ordi- narily 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. In fairness the First Minister did not seek to make any case to me that this was a party meeting.

8.9. The First Minister says that she took no action as a result of the meeting. Indeed this appears to be confirmed by Mr Salmond one of whose complaints is precisely that the First Minister failed to take the action he requested. In ef- fect his request was to alter or to override the Government policy and proce- dure in respect of handling harassment cases which had been agreed in late 2017. It is difficult not to conclude, therefore, that an aspect of the meeting concerned this Government procedure, although of course this was a Govern- ment procedure from which the First Minister was excluded by its express terms as a result of the policy adopted in 2017 and she claims that her involve- ment was only to explain why she could not and would not become involved..

8.10. However, in his submission Mr Salmond strongly argues that the First Minister did in fact agree to intervene in the process to secure a mediation process to resolve the complaints. He claims that she gave an assurance to that effect on 2 April. His account is supported by his advocate, Mr Duncan Hamilton, who states that he has a clear recollection that the First Minister said that “If it comes to it I will intervene”. Mr Aberdein did not hear this statement made but he had absented himself from the room at one point and he points out that it could have been said in his absence.

8.11. The First Minister, in her written statement, says that she was clear to Mr Salmond that she would not intervene. When appearing before the enquiry in the Scottish Parliament in reply to a question from Mr Stuart McMillan as to why she said to Mr Salmond “I want to assist”, which he took to mean that she would intervene to advocate for mediation in the first instance, she replied:-

I want to paint a picture—or rather, give people the context. I was sitting in my house. We are talking about 2 April, which was Easter Monday. The man whom I had worked with, been friends with and in my earlier years had looked up to so much had just told me something pretty shocking. My head was spinning and I was dealing with complicated emotions. When you are sitting with a friend who is saying, “I’m facing this terrible situation,” 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. We are talking about it now as a political scrutiny situation, which is absolutely proper, but in the moment, it was a human situation between two peo- ple who knew each other really well.

As I think that I have described to Andy Wightman, from the minute I saw the letter, I knew that it would not be appropriate for me to intervene. I was probably trying to soften that for him. From his accounts, maybe I softened that too much. In real time, I was also thinking, “Is there anything I have to do? Do I have to report this to anybody?” All of that was going through my head as we were having that discussion. However, I did not intervene because, for the reasons that I set out very vehemently to Margaret Mitchell, I did not think that that would have been appropriate for me to do11.

In reply to a question from Mr Alex Cole-Hamilton the First Minister did not deny that she had made the statement attributed to her by Duncan Hamilton:-

I made clear to him [i.e. Mr Salmond] that I had no role in the process. He could see that himself, because, I think, he had a copy of the process. I think that I made it clear that I would not intervene. Given what he has said and what Duncan Hamilton has said, there is a question about whether, in discussing with him what he thought should happen, I made that clear enough. If Duncan Hamilton says that I said something like that, there is, in a sense, disputed evidence. However, when I look at the things that I am being accused of saying, they do not strike me as being, “Yeah, yeah, I’m going to intervene.” Rather, they are things like, “Well, I’ll help if it is appropriate or if it comes to it”—if it comes to what? I do not know. The permanent secretary has got to tell me. Under the procedure, the permanent secretary would not tell me until the end. It sounds as if I was not actually thinking (11 Official Report (parliament.scot)- page 120 Page 33 of 61) of intervening. However, if Alex left there with the impression that I was, all that I can say is that that, clearly, was not the impression that I wanted to give him.

A crucial part in this is that I did not intervene. It has been put to me today that I should have intervened, but I did not. Whatever way I expressed myself and whatever discussions I took part in, I did not intervene in the process12.

As the First Minister has repeatedly, and correctly, stated, she did not inter- vene. 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 (see his text message of 3 June referred to in paragraph 10.2 below). If Mr Salmond was entirely confi- dent 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.


15. The Ministerial Code: Contacts with External Individuals and Organi- sations, including Outside Interest Groups and Lobbyists

15.1. Sections 4.22 and 4.23 of the Ministerial Code provide as follows:-

4.22 Ministers meet many people and organisations and consider a wide range of views as part of the formulation of Government policy. Meetings on official business should normally be arranged through Private Offices. A private secre- tary or official should be present for all discussions relating to Government busi- ness. Private Offices should arrange for the basic facts of formal meetings be- tween Ministers and outside interest groups to be recorded, setting out the rea- sons for the meeting, the names of those attending and the interests represented. A monthly list of engagements carried out by all Ministers is published three months in arrears.

4.23 If Ministers meet external organisations or individuals and find themselves discussing official business without an official present – for example at a party conference, social occasion or on holiday – any significant content (such as sub- stantive issues relating to Government decisions or contracts) should be passed back to their Private Offices as soon as possible after the event, who should ar- range for the basic facts of such meetings to be recorded in accordance with par- agraph 4.22 above.

15.2. It seems to have been generally assumed, even in the terms of the remit itself, that section 4.22 of the Ministerial Code applied to the meetings between the First Minister and Mr Salmond. I begin by saying that I do not accept that these meetings can be considered as SNP party meetings for the reasons stated in paragraph 9.8 of this report in which I discuss the character of the meeting of 2 April. The First Minister has accepted that before that first meeting with Mr Salmond she suspected the reason Alex Salmond wanted to see her on April 2 was that he was facing an allegation of sexual misconduct. As al- ready explained I accept her statement that her motives for agreeing to the meeting were partly political and partly personal.

15.3. From the first sentence of paragraph 4.22 of the Code it is clear that the primary, and possibly the sole purpose of this provision is to deal with meetings with people and organisations which are held or can be considered “as part of the formulation of Government policy.” This is reinforced by the subsequent requirement in the paragraph “for the basic facts of formal meetings between Ministers and outside interest groups to be recorded, setting out the reasons for the meeting, the names of those attending and the interests represented.” Paragraph 4.23 then extends the provision to deal with the situation where informal meetings or discussions take place but again this is qualified by confin- ing it to discussions containing “any significant content (such as substantive issues relating to Government decisions or contracts)”. Ministers must have numerous contacts every day which are not required to be recorded under this provision. The other highly significant aspect of this provision is that it applies only to “contacts with external individuals and organisations, including outside interest groups and lobbyists.” (Emphasis added).

15.4. We know what the discussions were about. They concerned a govern- mental process for dealing with harassment complaints against Scottish Gov- ernment Ministers, former Ministers and officials generally known as “the Pro- cedure”. As already stated its full and formal title is “Handling of harassment complaints involving current or former ministers” and it is described as an “in- ternal (my emphasis) procedure agreed in December 2017 and published in February 2018 on the Scottish Government intranet”. Since 23 August 2018 it is also published on the Scottish Government’s website at https://www.gov.scot/publications/handling-of-harassment-complaints-involv- ing-current-or-former-ministers/.

15.5. Note that the procedure is clearly described as an internal procedure. It did not apply to anybody who did not and never had worked for Scottish Gov- ernment. Indeed it was precisely the claim made by Scottish Government to have jurisdiction over harassment carried out by former Ministers during their time in office which formed a major bone of contention between Mr Salmond and the Scottish Government. In my opinion any person who was being pro- ceeded against under the Procedure, or for that matter was making a complaint under its provisions, was entitled to raise an issue without the matter being recorded under these provisions of the Code. I fully accept 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.

15.6. 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 5 June. 

Popular posts from this blog

SNP - Conspiracy of Silence

ScotGov, Humza and Nicola

Government by Gang - Scotland the Victim