Clem Fandango in Albatraz · @ColonyScotland
23rd Feb 2021 from TwitLonger
No redactions here
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Submission by Alex Salmond – Phase 4 – Ministerial
Code
Introduction
1. This is a submission to the Parliamentary Committee under Phase Four of
the Inquiry. This submission is compliant with all legal obligations under the
committee’s approach to evidence handling and takes full account of the Opinion
of Lady Dorrian in the High Court as published on 16th February 2021.
All WhatsApp messages between myself and the First Minister referred to in this
submission, have previously been provided to the Parliamentary Committee by
the First Minister and published by the Committee.
The Terms of Reference
2. Mr Hamilton, the independent adviser on the Ministerial Code, wrote to me on
8th September, 29th October, 16th November, 4th and 19th December. I replied
on 6th and 17th October, 23rd November and 23rd December. I finally agreed
under some protest to make a written submission.
The reason for my concern was that the remit drawn up for Mr Hamilton focuses
on whether the First Minister intervened in a civil service process. As I have
pointed out to Mr Hamilton, I know of no provisions in the Ministerial Code
which makes it improper for a First Minister to so intervene.
3. To the contrary, intervention by the First Minister in an apparently unlawful
process (subsequently confirmed by the Court of Session) would not constitute a
breach precisely because the First Minister is under a duty in clause 2.30 of the
Ministerial Code to avoid such illegality on the part of the Government she leads.
4. Further, to suggest intervention was a breach would be to ignore and
contradict the express reliance of the procedure on the position of the First
Minister as the leader of the party to which the former minister was a member in
order to administer some unspecified sanction.
5. It will accordingly be a significant surprise if any breach of the Ministerial
Code is found when the terms of reference have been tightly drafted by the
Deputy First Minister to focus on that aspect of the First Minister’s conduct.
6. By contrast, I have information which suggests other related breaches of the
Ministerial Code which should properly be examined by Mr Hamilton. I have
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asked that he undertake that investigation. I have drawn his attention to the
apparent parliamentary assurance from the First Minister on 29th October 2020
that there was no restriction on Mr Hamilton preventing him from doing so.
7. Mr Hamilton has failed to give me a clear response as to whether these related
matters relevant to the Ministerial Code, but outwith the specific remit, are
going to be considered. However, in his letter of 4th December he did indicate
that he was inclined to the view that such matters could be considered and will
take into account arguments for their inclusion. Since that time I understand
members of the Committee have received further assurances. It is on that basis I
make this submission.
8. In doing so, I would note that it does not serve the public interest if the
independent process of examination of the Ministerial Code (which I introduced
as First Minister) is predetermined, or seen to be predetermined, by a restrictive
remit given by the Deputy First Minister.
9. A restricted investigation would not achieve its purpose of genuine
independent determination and would undermine confidence in what has been a
useful innovation in public accountability.
10. I would accordingly urge Mr Hamilton to embrace the independence of his
role and the express assurance given to the Scottish Parliament by the First
Minister that he is free to expand the original remit drafted by the Deputy First
Minister and to address each of the matters contained in this submission.
Breaches of the Ministerial Code.
11. Beyond the terms of the remit set for Mr Hamilton by the Deputy First
Minister, there are other aspects of the conduct of the First Minister which, in my
submission, require scrutiny and determination in relation to breaches of the
Ministerial Code.
12. I was contacted by phone on or around 9 March 2018 and further the
following week by Geoff Aberdein, my former Chief of Staff. The purpose of the
contact was to tell me about meetings he had held with the First Minister’s Chief
of Staff, Liz Lloyd, at her request.
13. In the second of these meetings she had informed him that she was aware of
two complaints concerning me under a new complaints process introduced to
include former Ministers. She named one of the complainers to him. At that stage
I did not know the identity of the other complainer.
14. On receipt of the letter from the Permanent Secretary first informing me of
complaints on 7th March 2018 I had secured Levy and McRae as my solicitors
and Duncan Hamilton, Advocate and Ronnie Clancy QC as my counsel.
15. Even at this early stage we had identified that there were a range of serious
deficiencies in the procedure. There was no public or parliamentary record of it
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ever being adopted. In addition it contained many aspects of both procedural
unfairness and substantive illegality. There was an obvious and immediate
question over the respect to which the Scottish Government even had
jurisdiction to consider the complaints. In relation to former Ministers (in
contrast to current Ministers) it offered no opportunity for mediation. The
complaints procedure of which I was familiar (‘Fairness at Work’) was based on
the legislative foundation of the Ministerial Code in which the First Minister was
the final decision maker. I wished to bring all of these matters to the attention of
the First Minister. I did not know at that stage the degree of knowledge and
involvement in the policy on the part of both the First Minister and her Chief of
Staff.
16. Mr Aberdein had been asked by Ms Lloyd to be her contact with me and they
jointly arranged a meeting with the First Minister in the Scottish Parliament on
29th March 2018. This meeting was for the purpose of discussing the complaints
and thereafter arranging a direct meeting between myself and the First Minister.
There was never the slightest doubt what the meeting was about. Any suggestion
by the First Minister to the Scottish Parliament (Official Report, 8th October
2020) that the meeting was ‘fleeting or opportunistic’ is simply untrue. It was
agreed on the 29th March 2018 at the meeting in the Scottish Parliament
attended by Mr Aberdein and the First Minister and another individual that the
meeting between myself and the First Minister would take place on 2nd April at
her home near Glasgow. Self-evidently only the First Minister could issue that
invitation to her private home.
17. In attendance at the meeting on 2nd April 2018 were Mr Aberdein, Mr
Hamilton, Ms Lloyd and myself. The First Minister and I met privately and then
there was a general discussion with all five of us. My purpose was to alert the
First Minister to the illegality of the process (not being aware at that time of her
involvement in it) and to seek an intervention from the First Minister to secure a
mediation process to resolve the complaints.
18. I was well aware that under the Ministerial Code the First Minister should
notify the civil service of the discussion and believed that this would be the point
at which she would make her views known. The First Minister assured us that
she would make such an intervention at an appropriate stage.
19. On 23rd April 2018, I phoned the First Minister by
arrangement on WhatsApp to say that a formal offer of mediation was being
made via my solicitor to the Permanent Secretary that day. In the event ,
this offer was declined by the Permanent Secretary, even before it was put to the
complainers.
20. By the end of May, it was becoming clear that the substantial arguments my
legal team were making in correspondence against the legality of the procedure
were not having any impact with the Permanent Secretary. My legal team
advised that it was impossible properly to defend myself against the complaints
under such a flawed procedure. They advised that a petition for Judicial Review
would have excellent prospects of success given the Government were acting
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unlawfully. However I was extremely reluctant to sue the Government I once led.
I wanted to avoid the damage both to the Scottish Government and the SNP
which would inevitably result. To avoid such a drastic step, I resolved to let the
First Minister see the draft petition for Judicial Review. As a lawyer, and as First
Minister, I assumed that she would see the legal jeopardy into which the
government was drifting. I therefore sought a further meeting.
21. On 1st June 2018 the First Minister sent me a message which was the
opposite of the assurance she had given on the 2nd April 2018 suggesting
instead that she had always said that intervention was “not the right thing to do”.
That was both untrue and disturbing. On 3rd June 2018 I sent her a message on
the implications for the Government in losing a Judicial Review and pointing to
her obligation (under the Ministerial Code) to ensure that her administration
was acting lawfully and (under the Scotland Act) to ensure that their actions
were compliant with the European Convention.
22. The First Minister and I met in Aberdeen on 7th June 2018 when I asked
her to look at the draft Judicial Review Petition. She did briefly but made it clear
she was now disinclined to make any intervention.
23. My desire to avoid damaging and expensive litigation remained. My legal
team thereafter offered arbitration as an alternative to putting the matter before
the Court of Session. That proposal was designed to offer a quick and relatively
inexpensive means of demonstrating the illegality of the procedure in a process
which guaranteed the confidentiality of the complainers. It would also have
demonstrated the illegality of the process in a forum which would be much less
damaging to the Scottish Government than the subsequent public declaration of
illegality. I was prepared at that time to engage fully with the procedure in the
event my legal advice was incorrect. In the event, of course, it was robust. I
explained the advantages of such an approach to the First Minister in
a Whatsapp message of 5th July 2018.
24. At the First Minister’s initiative which I was informed about on the 13th July
we met once again at her home in Glasgow at her request, the following day, 14th
July 2018. There was no one else at this meeting. She specifically agreed to
correct the impression that had been suggested to my counsel in discussion
between our legal representatives that she was opposed to arbitration. I
followed this up with a WhatsApp message on the 16th July 2018.
25. On 18th July 2018 the First Minister phoned me at 13.05 to say that
arbitration had been rejected and suggested that this was on the advice of the
Law Officers. She urged me to submit a substantive rebuttal of the specific
complaints against me, suggested that the general complaints already answered
were of little consequence and would be dismissed, and then assured me that my
submission would be judged fairly. She told me I would receive a letter from the
Permanent Secretary offering me further time to submit such a rebuttal
which duly arrived later that day. As it turned out the rebuttal once submitted
was given only cursory examination by the Investigating Officer in the course of
a single day and she had already submitted her final report to the Permanent
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Secretary. My view is now that it was believed that my submission of a rebuttal
would weaken the case for Judicial Review (my involvement in rebutting the
substance of the complaints being seen to cure the procedural unfairness) and
that the First Ministers phone call of 18th July 2018 and the Permanent
Secretary’s letter of the same date suggesting that it was in my “interests” to
submit a substantive response was designed to achieve that.
26. In terms of the meetings with me, the only breaches of the Ministerial Code
are the failure to inform civil servants timeously of the nature of the meetings.
27. My view is that the First Minister should have informed the Permanent
Secretary of the legal risks they were running and ensured a proper examination
of the legal position and satisfied herself that her Government were acting
lawfully.
28. Further once the Judicial Review had commenced, and at the very latest by
October 31st 2018 the Government and the First Minister knew of legal advice
from external counsel (the First Minister consulted with counsel on 13th
November) that on the balance of probability they would lose the Judicial Review
and be found to have acted unlawfully. Despite this the legal action was
continued until early January 2019 and was only conceded after both
Government external counsel threatened to resign from the case which they
considered to be unstateable. This, on any reading, is contrary to section 2.30 of
the Ministerial Code.
29. Most seriously, Parliament has been repeatedly misled on a number of
occasions about the nature of the meeting of 2nd April 2018.
30. The First Minister told Parliament (see Official Report of 8th,10th & 17th
January 2019) that she first learned of the complaints against me when I visited
her home on 2nd April 2018. That is untrue and is a breach of the Ministerial
Code.
The evidence from Mr Aberdein that he personally discussed the existence of the
complaints, and summarised the substance of the complaints, with the First
Minister in a pre arranged meeting in Parliament on 29th March 2018 arranged
for that specific purpose cannot be reconciled with the position of the First
Minister to Parliament. The fact that Mr Aberdein learned of these complaints in
early March 2018 from the Chief of Staff to the First Minister who thereafter
arranged for the meeting between Mr Aberdein and the First Minister on 29th
March to discuss them, is supported by his sharing that information
contemporaneously with myself, Kevin Pringle and Duncan Hamilton, Advocate.
31. In her written submission to the Committee, the First Minister has
subsequently admitted to that meeting on 29th March 2018, claiming to have
previously ‘forgotten’ about it. That is, with respect, untenable. The pre-arranged
meeting in the Scottish Parliament of 29th March 2018 was “forgotten” about
because acknowledging it would have rendered ridiculous the claim made by the
First Minister in Parliament that it had been believed that the meeting on 2nd
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April was on SNP Party business (Official Report 8th & 10th January 2019) and
thus held at her private residence. In reality all participants in that meeting were
fully aware of what the meeting was about and why it had been arranged. The
meeting took place with a shared understanding of the issues for discussion -
the complaints made and the Scottish Government procedure which had been
launched. The First Minister’s claim that it was ever thought to be about
anything other than the complaints made against me is wholly false.
The failure to account for the meeting on 29th March 2018 when making a
statement to Parliament, and thereafter failing to correct that false
representation is a further breach of the Ministerial Code.
Further, the repeated representation to the Parliament of the meeting on the 2nd
April 2018 as being a ‘party’ meeting because it proceeded in ignorance of the
complaints is false and manifestly untrue. The meeting on 2nd April 2018 was
arranged as a direct consequence of the prior meeting about the complaints held
in the Scottish Parliament on 29th March 2018.
32. The First Minister additionally informed Parliament (Official Report 10th
January 2019) that ‘I did not know how the Scottish Government was dealing
with the complaint, I did not know how the Scottish Government intended to
deal with the complaint and I did not make any effort to find out how the Scottish
Government was dealing with the complaint or to intervene in how the Scottish
Government was dealing with the complaint.’
I would contrast that position with the factual position at paragraphs 18 and 25
above. The First Minister’s position on this is simply untrue. She did initially
offer to intervene, in the presence of all those at the First Ministers house on the
2nd April 2018. Moreover, she did engage in following the process of the
complaint and indeed reported the status of that process to me personally.
33. I also believe it should be investigated further in terms of the Ministerial
Code, whether the criminal leak of part of the contents of the Permanent
Secretary’s Decision report to the Daily Record was sourced from the First
Minister’s Office. We now know from a statement made by the Daily Record
editor that they received a document. I enclose at Appendix B the summary of
the ICO review of the complaint which explains the criminal nature of the leak
and the identification of 23 possible staff sources of the leak given that the ICO
Prosecutor has “sympathy with the hypothesis that the leak came from an
employee of the Scottish Government”. My reasoning is as follows. The leak did
not come from me, or anyone representing me. In fact I sought interdict to
prevent publication and damage to my reputation. The leak is very unlikely
indeed to have come from either of the two complainers. The Chief Constable,
correctly, refused to accept a copy of the report when it was offered to Police
Scotland on August 21st 2018 by the Crown Agent. It cannot, therefore have
leaked from Police Scotland. Scottish Government officials had not leaked the
fact of an investigation from January when it started. The only additional group
of people to have received such a document, or summary of such a document, in
the week prior to publication in the Daily Record was the First Minister’s Office
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as indicated in paragraph 4.8 of the ICO Prosecutor’s Report. In that office,
the document would be accessed by the First Minister and her Special Advisers.
I would be happy to support this submission in oral evidence.
Rt Hon Alex Salmond
17th February 2021
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
T. 0303 123 1113 F. 01625 524510
www.ico.org.uk
Our ref: CH/IC/0295/2018
Mr David McKie
Levy & McRae
Pacific House
70 Wellington Street
Glasgow
G2 GUA
By email only:
Dated 28 May 2020
Dear Mr McKie
Re: Your Client – Mr A. Salmond/ Your Ref DMK/LL/STE039-0001
1. Introduction
1.1 Further to a request made on behalf of your above client, I have been
asked to review a decision made by the Criminal Investigations Team
(CRIT) at the ICO to discontinue an investigation into potential offences
under s.170 Data Protection Act (DPA) 2018, in accordance with the
Victims Right to Review scheme.
1.2 I am a Solicitor (Prosecutor) based within the Regulatory Enforcement
Team at the ICO. I confirm that I have had no previous dealings with
the matter.
1.3 My remit is to consider whether, having investigated the complaint, the
decision made by the investigations team to not investigate further was
correct and reasonable.
[Redacted]
Appendix B
1.4 I have had full access to, and have carefully reviewed, all material
gathered and held by CRIT during the course of their investigations.
1.5 The review concerns the outcome of an investigation into a complaint
made under s.165 DPA 2018 on behalf of Mr Salmond to the ICO on
the 29 October 2018.
1.6 The complaint pertained to the suspected unlawful obtaining and
disclosing of personal data relating to Mr Salmon to the press in August
2018; a potential offence under s.170 DPA 2018.
1.7 The data was contained within a report relating to the outcome of an
internal misconduct investigation, which was leaked to the press on the
23 August 2018 and published in the Daily Record on 23 and 25 August
2018.
1.8 Furthermore, the fact and content of legal advice from the Lord
Advocate to the Scottish Government regarding the allegations made
against Mr Salmond were reported in an article in The Sunday Post
published on the 26th August 2018 and again in The Herald on 12
November 2018.
2. Relevant Law
2.1 Under s.170 DPA 2018, it is an offence to, knowingly or recklessly,
obtain, disclose, procure disclosure or retain personal data without the
consent of the data controller.
2.2 The information contained in the internal misconduct report and the
legal advice was highly sensitive and personal, in that it related to
allegations of misconduct made against Mr Salmond. It would certainly
meet the definition of “personal data” pertaining to a living individual as
per s.3(2) DPA 2018.
2.3 It was clear from the events set out in the complaint sent on behalf of
Mr Salmond that the personal data had indeed been obtained and
disclosed to the press.
2.4 The ensuing investigation by the ICO was to establish whether any
individual could be identified and potentially prosecuted for the unlawful
obtaining and/or disclosing of the data under s.170 DPA 2018.
2.5 The offence of unlawfully obtaining and/or disclosing personal data
contrary to s.170 DPA 2018 is an offence committed against the data
controller. In this matter, the personal data contained in the internal
misconduct investigation report and in legal advice from the Lord
Advocate, belonged to the Scottish Government (SG).
2.6 The SG was therefore the data controller in accordance with s.3(6) DPA
2018 and the potential complainant in this matter.
2.7 As the data subject under s.3(5) DPA 2018, Mr Salmond would
however also be classed as a “victim”. Any impact on him resulting from
the offence would of course therefore be an important consideration in
ascertaining the level of harm caused by the offence.
2.8 The issue for the investigations team was whether the source of the
data leak could be identified, to enable a prosecution to be brought
against the individual responsible under s.170 DPA 2018.
3. Review of the evidence
3.1 In order to identify a suspect, it would be necessary to identify
the method of disclosure used.
3.2 A forensic examination of the IT systems used by the SG was carried out
as part of the Data Handling Review conducted by the Data Protection
Officer at the SG following the data leak.
3.3 No evidence was found that data was leaked through email, document
sharing or downloading to portable media device. Furthermore, no
evidence was found that a third party had unlawfully accessed the SG’s
IT systems.
3.4 Without an electronic trail to follow, it was difficult to uncover the
method of disclosure used.
3.5 To progress the investigation, a witness would be needed who
would be willing to provide information about the method of disclosure
(for example, by hard copy being passed in person) and the identity of
the culprit.
3.6 The Daily Record had declined to provide information as to how or by
whom they came by the copy of the report, relying on the journalistic
exemption within the DPA 2018, clause 14 of the Editors Code of
Practice and s.10 of the Contempt of Court Act 1981.
3.7 23 members of staff were identified as having knowledge of, or
involvement in, the internal misconduct enquiry. These members of
staff were interviewed by the Data Protection Officer at the SG as part
of their Data Handling Review. The interviews did not disclose any
information which would enable a suspect to be identified.
3.8 In the absence therefore of any further information coming to light, or
any witness coming forward, there was insufficient evidence to point to
any specific suspect and to allow the investigation to move forward.
4. Representations on behalf of Mr Salmond
4.1 In addition to all the material provided by the SG, I have also
considered the representations made on behalf of Mr
Salmond in previous correspondence with Levy & McRae, in particular
the submission that the timing of the leak to the press raises an
irresistible conclusion that the leak came from within the SG.
4.2 The leak came a few hours after the SG had notified their intention to
publish a press release and very shortly after Levy & McRae had given
notice of their intention to apply for an interim interdict. The effect of
the leak was to defeat the court action because the information was by
then in the public domain.
4.3 I have also considered the statement of Detective Chief Superintendent
, helpfully provided by Levy & McRae. The statement
confirms that at a meeting on the 21 August 2018, the police were
offered a copy of the internal misconduct investigation report but
refused to take it. Furthermore, at that meeting, DCS voiced
[Redacted]
[Redacted]
concerns about the SG making a public statement about the outcome of
their investigations.
4.4 Levy & McRae point to this statement to show that the SG (or an
employee thereof) wanted the information to get into the public domain
and to show that the police are highly unlikely to have been the source
of the leak.
4.5 The SG sent a proposed press release to Levy & McRae on the 23
August. In response, Levy & McRae notified the SG of their intention to
apply for an interim interdict. The SG responded by confirming that
they would not issue the press release in the meantime. Events were
then of course overtaken by the leak of the information to the press and
into the public domain.
4.6 I have sympathy with the hypothesis that the leak came from an
employee of the SG and agree that the timing arguably could raise such
an inference. It was still necessary to identify a suspect.
4.7 The interviews with the relevant staff members didn’t provide any leads
however and no other person had come forward volunteering
information.
4.8 There remains the possibility that the leak came from elsewhere. The
list of stakeholders who had access to the internal misconduct
investigation report includes the original complainants, the QC, the First
Minister’s Principal Private Secretary, the Crown Office & Procurator
Fiscal Service and Mr Salmond and Levy & McRae, as well as the
relevant staff members of the SG.
4.9 The list of stakeholders who had access to the legal advice provided by
the Lord Advocate during the misconduct investigation included staff
within the Lord Advocate’s office, the Permanent Secretary’s Office and
officials in the SG’s Legal Directorate.
4.10 Following investigation, there was no evidence to identify any specific
individual within these lists, or any member of staff working for anybody
within these lists, as a potential suspect.
5. Review of decision by CRIT
5.1 As investigators, CRIT must have regard to the provisions of the
Criminal Procedures and Investigations Act 1996, specifically
s.23(1) Code of Practice Part II.
5.2 Point 3.5 provides that the investigator shall pursue all reasonable lines
of inquiry. CRIT have a duty therefore to investigate data complaints to
an appropriate extent.
5.3 During this investigation, it is clear that CRIT gathered extensive
information from the SG, seeking further information and clarification
where needed.
5.4 The result was no suspect could be identified from the evidence collated
and the decision was taken that the investigation could not be
progressed without further information coming to light.
5.5 I am satisfied that the complaint had been investigated to an
appropriate extent, with all reasonable avenues of inquiry considered
and/or pursued.
5.6 When deciding whether to proceed to prosecute in any case, I am
required to apply the two stage test prescribed by the Code for Crown
Prosecutors issued by the Crown Prosecution Service.
5.7 The first stage is to consider whether there is sufficient evidence to
provide a realistic prospect of conviction. Without a suspect, there is
simply no realistic prospect of conviction because there is nobody to
prosecute and/or convict. I do not therefore even reach the second
stage of the test, which is to consider whether it would be in the public
interest to prosecute.
5.8 I am satisfied that in the absence of any suspect, the decision to
discontinue the investigation was correct and reasonable in all the
circumstances.
5.9 If further information comes to light, for example if a witness comes
forward, then I have no doubt that the matter would be properly
revisited. At the present time, however, I am satisfied that there are no
grounds to re-instate the investigation.
Yours sincerely,
Solicitor (Prosecutor)
[Redacted]
James Hamilton
Independent Adviser on the Scottish Ministerial Code
c/o E:
Alex Salmond,
c/o Levy & McRae
Pacific House
70 Wellington St
Glasgow
G26UA
8 September 2020
Dear Mr Salmond,
SCOTTISH MINISTERIAL CODE: FIRST MINISTER'S SELF-REFERRAL
As you may know, I have been appointed as the independent adviser to consider the First
Minister's self-referral under the Ministerial Code. I attach a copy of the Parliamentary
answer which sets out the remit for the referral.
My purpose in writing is to seek your cooperation in my enquiries, and to request from you a
range of information to assist me in preparing my report.
I would be grateful if you would supply me with a general statement about your actions and
involvement in the matters covered by my remit.
This should include, but not be limited to: an indication of what were the intentions that lay
behind your actions and, in particular, the series of contacts that you had with the First
Minister; and, any other information that would assist me in my considerations.
In addition to a general statement, I would welcome your response to a series of specific
questions as follows:
1. Details of all contacts you, or anyone representing you, had with the First Minister or any
civil servant or special advisor between 16 January 2018, when the first complaint was
made under the Scottish Government's Procedure for the Handling of Harassment
Complaints involving Current or Former Ministers, and 18 July 2018, when a second
telephone conversation took place, which, according to the First Minister, was the last
contact between the First Minister and yourself. Could you also provide details of the
purpose of your communication with the First Minister?
[Redacted]
Appendix C
EMAIL EXCHANGES BETWEEN MR ALEX SALMOND AND
MR JAMES HAMILTON
1. Mr Salmond to Mr Hamilton
31st December 2020
Dear
Correspondence for Mr Hamilton
Please see attached correspondence, submission and two
appendices for the attention of Mr James Hamilton. Please
confirm receipt and thank you for your assistance.
Best wishes for 2021
Yours for Scotland
Alex Salmond
2. Mr Hamilton to Mr Salmond
19th December 2020
Dear Mr. Salmond,
Further to my letter of 7 December 2020, I repeat my enquiry
whether you are prepared to provide a written statement to help
me with my investigation. It would be very helpful to have a
written statement from you, with as much information as you
feel able to provide, setting out your responses to the questions
included in previous correspondence.
[Redacted]
Appendix D
As you are aware the Ministerial Code provides that the First
Minister may refer matters to the independent advisers to
provide her with advice on which to base her judgment about
any action required in respect of Ministerial conduct. The First
Minister has made such a referral to me on foot of which I have
sought written statements from all the persons whom I have
identified as likely to have evidence relevant to that remit. I
have now received written statements from every person whom
I have so identified except you.
As you are also aware I have no power to compel any person to
cooperate with me. That being so I must formulate my advice
on the evidence and information which is available to me. I also
consider that the First Minister is entitled to expect that I will do
so in a reasonably expeditious manner.
I therefore now intend to complete my consideration of written
statements as soon as possible. In order for any statement from
you to form part of that consideration I will need to receive it
without delay. If you do intend to make a statement I would
appreciate it if you could let me know when I might expect to
receive it, otherwise I shall assume that you have decided not
to become involved in this process.
Yours sincerely,
James Hamilton
3. Mr Hamilton to Mr Salmond
Dated 4th December 2020 but emailed on 7th December
2020
Dear Mr. Salmond
Thank you for your letter of 23 November sent via email to
.
I consider it necessary in order for me to fulfil my remit that I
obtain a full understanding of what was the purpose of the
meetings between you and the First Minister and what occurred
at them. Your evidence is therefore of great importance to me.
I am prepared to consider any arguments you may wish to
advance about the scope of my remit. However, until I know
what evidence you wish to give it would be premature for me to
form a decided opinion on whether the remit should be
extended or, in the event that I accepted the case for an
extension, on how I should then proceed.
My inclination is to think that in the case of matters which form
part of, or are closely related to, the subject matter of the remit it
could be open to me to consider whether any provisions of the
Ministerial Code other than those mentioned expressly in the
remit had been broken. However, that situation is distinct from
broadening the factual scope of the inquiry. I am, of course,
prepared to consider any arguments you may wish to make
before coming to a final conclusion on this point.
Although the procedure for an inquiry by an independent
advisor under the Ministerial Code is a relatively informal one
the rules of natural justice apply including in particular my
obligation to hear both sides of any question which arises for
determination. This, in my opinion, extends not only to the
[Redacted]
consideration of evidence but also to any questions which may
arise as to the scope of the remit.
It follows that if a question arises as to whether a particular
matter can be regarded as falling within the scope of the remit
or, if it does not, whether that scope ought to be expanded, it
would be wrong of me to take a decided view on those issues
based solely on your submissions without also giving the First
Minister an opportunity to comment on them.
I would therefore suggest that you let me see your proposed
evidence as soon as possible, together with any observations
you may wish to make about the scope of the remit. If
necessary I will then seek the First Minister’s observations
before I decide how I should deal with the matter.
Finally, with regard to your suggestion that there was a “criminal
leak” to a newspaper I have no function to investigate crimes
which should be reported to the proper authorities.
Yours sincerely,
James Hamilton
4. Mr Salmond to Mr Hamilton
23rd November 2020
Dear Mr Hamilton
Thank you for your letter of 29th October. I apologise for the
delay in replying, but I had assumed that it had crossed with the
exchange in the Scottish Parliament, detailed below, of that
same date. To that end, I was awaiting a follow up letter from
you, confirming that indeed your remit was not “limited to one
aspect of the Ministerial Code”;
• Oliver Mundell (Dumfriesshire) (Con): Will the First
Minister agree to expand the ministerial code investigation
to include her statements to Parliament and her actions on
the legal advice regarding the judicial review into Alex
Salmond’s alleged behaviour?
• The First Minister (Nicola Sturgeon): My view right now
is that James Hamilton, who is the adviser undertaking the
investigation into the ministerial code, is not restricted at all
in the issues that he can look at. If he thinks that there are
any issues that engage the ministerial code or could in any
way constitute a breach of the ministerial code, my view is
that he is free to look at them. If he considers that that
requires any change to his official remit, I am sure that he
is perfectly able to say that. However, for the record and to
be clear, I do not consider his remit to be limited to just one
aspect of the ministerial code.
You will have noted that this parliamentary exchange seems at
odds with your letter, which suggests that you are restricted to
answering the “questions asked in the referral”. You state;
‘‘As you are aware the remit of the referral was set out by the
Deputy First Minister in a PQ response to the Scottish
Parliament made on 6 August 2020. Considering that the
principal matter I am asked to consider concerns an alleged
breach of the Ministerial Code in the First Minister’s failure to
record contacts with you it seems entirely logical to ask the
question whether the First Minister was in fact involved in any
way in the Scottish Government investigation. In seeking to
answer the questions asked in the referral I will of course have
to consider any relevant surrounding circumstances.”
As detailed in my previous letter, I know of no aspect of the
Ministerial Code which prevents a First Minister intervening in a
process, not least one which was found by the Court of Session
to be “unlawful”, and as one consequence of which said
process is currently being examined by the SGHHC Committee
of the Scottish Parliament.
As I understand it, not intervening to ensure Government is not
acting unlawfully when there is a danger that this might be the
case, could be considered a breach in terms of the Ministerial
Code. Non-intervention in this matter is relevant to the period
covering spring and summer of 2018, and in the autumn, this
extended to agreeing with or permitting the Permanent
Secretary to disregard external legal advice on the
Government’s prospects of success in the Judicial Review.
This was further compounded by Parliamentary statements on
repeated occasions, which have been questioned by MSPs as
misleading, most pertinently in relation to the timing of when the
First Minister first knew of the investigation and the explanation
that the 2nd April meeting was held in the First Minister’s private
home because she thought it was a matter of party business.
There is, of course, the further question of the criminal leak of
protected information to the Daily Record newspaper on
23/24th August 2018 and what, if anything, was the First
Minster’s state of awareness of the circumstances and the
potential involvement of her staff in same.
When I established the independent procedure for referral of
purported First Ministerial breaches of the Ministerial Code, it
was an innovation and one carried through in good faith. I
appointed people of outstanding calibre, such as yourself as
independent advisors, so that no-one could suggest that any
referrals were being “fixed” either by the civil service or the
Government.
It would be disappointing if this is now being done by the
Deputy First Minister, by virtue of confining your terms of
referral.
I look forward to your confirmation that your remit is not “limited
to just one aspect of the Ministerial code”. On that basis I will
submit the evidence for which you have asked.
Two final matters.
Firstly, I enclose the letter from the Crown Office which you
requested. As you will note, it threatens prosecution if I were to
reveal to the Parliamentary Committee (and presumably to
yourself) documents which were disclosed in the course of the
criminal case.
Secondly, I confirm that the record of Whatapp messages
between the First Minster and myself from 5 November 2017 to
20 July 2018 supplied to the Parliamentary Committee by the
First Minister and published on their website is correct. There is
however, one exception.
I look forward to hearing from you
Yours sincerely
Rt Hon Alex Salmond
[Redacted]
5. Mr Hamilton to Mr Salmond
Dated 29th October 2020 but emailed on 16th November
2020
29 October 2020
Dear Mr. Salmond,
As I set out in my letter dated 29 October, I am in the process of
considering written submissions in relation to the matters
referred to me by the First Minister as independent adviser in
relation to the Ministerial Code and considering what additional
information I may need to gather. I have now received written
submissions from all the principal persons whom I believe may
have relevant evidence except for you.
I would hope to be able to consider any written submission you
might wish to provide as part of that process. It would therefore
be helpful to me if you could indicate whether you intend to
provide a written submission and if so when it might be
available.
Yours sincerely,
James Hamilton
6. Mr Hamilton to Mr Salmond
29th October 2020
Dear Mr. Salmond,
Thank you for your emails of 6th October and 17th October
asking various clarification questions about the work I am
undertaking. I apologize for the delay in acknowledging your
first email, and for the delay in providing a substantive
response. Your correspondence raised a number of significant
questions which I wanted to give full consideration to.
Regarding the first point, I note what you say about
representing yourself. I will, of course, have no control over
what you put in your submissions. I can confirm that I will do my
best to ensure that nothing in my report will be in breach of any
applicable court orders.
In relation to your second point, thank you for drawing my
attention to the two court interlocutors attached to your letter. I
will have regard to these when conducting my investigation. I
would indeed appreciate receiving a copy of the letter from the
Crown Office which you refer to. Again, as I have just stated, I
will do my best to ensure that nothing in my report will be in
breach of any applicable court orders.
On the third point, as you will know, James Hynd’s role as head
of Cabinet Secretariat includes supporting Ministers in matters
relating to the Ministerial Code. On that basis, Mr. Hynd
supported the Deputy First Minister in establishing the referral I
have been asked to undertake.
Mr. Hynd has stepped away from the process and
has been appointed as Head of Secretariat Support to
support my work as I require. I can confirm therefore that
James Hynd will not play any role in relation to the day to day
conduct of the inquiry or in the finalisation of my report and any
recommendations that I may make.
I note your comment concerning my remit. As you are aware the
remit of the referral was set out by the Deputy First Minister in a
PQ response to the Scottish Parliament made on 6 August
2020. Considering that the principal matter I am asked to
[Redacted]
[Redacted]
consider concerns an alleged breach of the Ministerial Code in
the First Minister’s failure to record contacts with you it seems
entirely logical to ask the question whether the First Minister
was in fact involved in any way in the Scottish Government
investigation. In seeking to answer the questions asked in the
referral I will of course have to consider any relevant
surrounding circumstances.
In relation to the issues raised in your second email, I can
confirm that any response to my enquiries relating to the factual
matters I am asked to enquire into will be used in the
compilation of the report. I have not yet decided fully on the
format of the report but any reply to such enquiries will be liable
to be published with the exception of material which cannot be
made public as a result of court orders or for other legal
reasons.
I have set out various matters relevant to your questions in my
recent correspondence with the Parliamentary committee.
https://www.parliament.scot/HarassmentComplaintsCommittee/
James Hamilton.pdf
With regard to incidental queries it would not be my intention to
publish them as a matter of routine and it would be my
preferred option to make no comment pending the completion
of my enquiries. However, I am concerned not to favour or be
perceived to favour any particular interested party in the matter
and therefore if I were asked questions concerning contacts
between interested parties and me I might well think it proper or
necessary in the public interest and in particular in the interests
of transparency to give a full reply.
For that reason I cannot exclude the possibility that any
correspondence between us might at some stage be published.
I hope this answers your questions.
As you know, I am currently in the process of considering
written submissions and what additional information I may need
to gather. It would be helpful if you were able to indicate when
you would be able to offer a written submission.
James Hamilton
7. Mr Salmond to Mr Hamilton
17th October 2020
Mr James Hamilton
Independent Adviser on The Scottish Ministerial Code.
17th October 2020
Dear Mr Hamilton
Further to my letter of 8th October I await an answer to the
questions posed or an acknowledgement of the email. Could
you ask your staff to provide this?
I am now in receipt of several press queries on whether I have
been in communication with you. My practice with the
Parliamentary Committee has been to “no comment” but draw
attention to the publication of correspondence. However, I doubt
that it is your intention to publish correspondence and therefore
I would wish your guidance on how to reply to these questions.
On which subject I enclose a letter which my lawyers sent to the
Parliamentary Committee on 14th October, which is clearly
relevant to your remit, however it be defined.
Yours sincerely
The Rt Hon Alex Salmond
Appendix 1
Dear
WhatsApp Messages between Mr Salmond and First Minister
Thank you for your email of 13th October.
These are the additional messages we referred to in our letter
of 27th November which were omitted from the First Minster’s
earlier submission. Apparently as a consequence of our
informing the Committee of this omission, the First Minister has
already read them out on live Sky News television in an
interview with Sophy Ridge on October 11th without seeking
our client’s permission to release his data. In these
circumstances he considers that it would be perverse for him to
object to them being seen and published by your Committee.
However, we make the assumption that you only intend to
publish material relevant to the Committee’s remit.
The message of 5th November 2017 is the First Minister
initiating contact over a Sky News press inquiry while the
message on 6th November was the First Minister wishing to
speak further after an approach on the same subject from the
[Redacted]
Permanent Secretary. These are at least arguably relevant to
the Inquiry and he is content that they are published.
The first two messages of 9th November concern the First
Minister’s objections to the launch of our clients TV Show that
day on RT (as confirmed by her on Sky News) and are
therefore not relevant to your enquiry and should not be
published.
However the third message of 9th November beginning “Ps” is
a direct reference to her earlier messages of 5th November and
should be published.
Our client’s message to the First Minister of 10th November is a
continuation of our client’s disagreement with the First Minister
over the television show and a reference to the then bid for the
Scotsman newspaper. As such it should not be published.
In addition, in our letter of 27th September we raised the
question of the reasons for the redaction of the name of the
person who had relayed the message from the First Minister
that she wished to meet our client for a third time on this issue.
You explained that it was the First Minister had redacted this
information from our client’s message of 13th July 2018 at
11.01am.
Since it was our client’s message, we are aware of no legal
reason for this redaction; it seems highly relevant to your
deliberations and our client is content to see the message
published in full. Can you please clarify the reason for redaction
with the Scottish Government? Our client is content to provide a
copy of the unredacted message.
However, we will leave the final decision on publication to your
Committee. However we would ask that this information is
shared with Committee members.
As we previously noted for completeness our client has a
record of a missed call from the First Minister to our client at
13.05 on the 18th July.
Our client hopes that this is helpful.
Yours sincerely
David McKie
Partner
8. Mr Salmond to Mr Hamilton
6th October 2020
Mr James Hamilton
Independent Adviser on the Scottish Ministerial Code
6th October 2020
Dear Mr Hamilton,
Thank you for your letter of 8th September.
I do indeed have information which will be of assistance to your
enquiries and am happy to assist you if I can.
However I would like to accept your offer of clarification on your
request and ask first for answers to the following points;
Firstly, I am prepared to represent myself in presenting you with
evidence. I am a private individual and simply cannot afford to
hire further legal representation as my lawyers are fully
occupied dealing with the Scottish Parliamentary Inquiry. Vast
sums of public funds have already been expended by Scottish
Government officials in legal representation in this process. I
am also informed that other witnesses are relying on their
political party to finance their legal representation. I will
represent myself and am therefore in no position to accept
responsibility as to whether my submissions are in line with
legal requirements as you suggest in your letter. That will
require to be your responsibility and I will be grateful if you
could now confirm this.
Secondly, on a related point, the remit drawn by the Deputy
First Minister refers to the anonymity orders drawn up by the
“court in the criminal proceedings”. I would draw your attention
to the rather more relevant ruling of Lord Woolman in the civil
proceedings of 8th October 2018. This was sought by my
counsel and as I recall the Scottish Government were not even
represented by counsel at that hearing. Also relevant would be
the interlocutor of Lord Pentland of January 8th 2019 after
concession of the Judicial Review, where certain Scottish
Government documents were reduced by the Court as the
product of an unlawful process. For ease of reference I have
copied you both of these court interlocutors. Please confirm that
you shall not be relying on, or accepting into evidence, said
unlawful documents as any part of your enquiries.
You may also be aware that my solicitors have been informed
by letter from the Crown Office that if they present or even
describe to the Parliamentary Committee information gained in
disclosure in the criminal proceedings they will be liable to
prosecution. I am happy to provide you with this letter if you
wish. Please confirm if this threat applies to your enquiry
because there are indeed relevant documents under this
restriction. However, given that much of this documentation was
obtained by Crown search warrant from the Scottish
Government it would be open for the Government to supply you
with it. Your difficulty is that you do not know what it is and I am
currently debarred from informing you.
Thirdly, I understand from the Parliamentary Committee
hearings in answer to a question from Ms Jackie Baillie that the
civil servant who has been allocated responsibility for leading
support for your enquiry is Mr James Hynd. However Mr Hynd
was himself deeply involved in the Scottish Government’s
unlawful complaints procedure. Indeed he claimed under oath
at both the Commission which was required as part of the
Judicial Review in December 2018 and in front of the
Parliamentary Committee last month to be the original author of
the policy. I do not dispute Mr Hynd’s personal integrity although
I note he was forced to write to the Committee to correct an
impression he had unwittingly given about me in his evidence.
However, please clarify his status and position in your enquiry
given his prior involvement in this matter.
Fourthly, the remit given to your investigation by the Deputy
First Minister lays a surprising stress on whether she interfered
in the Scottish Government investigation. It might even be
suspected that this remit has been set up as a straw man to
knock down. There is no general bar on Ministers intervening in
a civil service process of which I am aware and indeed there
are occasions when Ministers are actually required by the code
to intervene to correct civil service behaviour.
What I wish to know is whether matters which, by contrast, are
specified in the Ministerial code such as the primary
responsibility of not misleading Parliament (contrary to 1.3 (c) of
the code), such as the failure to act on legal advice suggesting
the Government was at risk of behaving unlawful (contrary to
2.30 of the code), and such as the Ministerial failure to ensure
civil servants gave truthful information to parliament (contrary to
1.3 (e) of the code) will have at least equal status in your
deliberations or are you confined to the political remit which you
have been set? If your enquiry has been confined by Ministers
then please tell me if you have the authority to expand that
remit unilaterally? If not, will you seek the authority of those in
the Scottish Government who set the remit to expand it into
these, and other, areas?
Finally since the Parliamentary Committee has demanded full
transparency and expressed an interest in your deliberations I
have copied them into this email.
As I am answering your enquires personally please direct all
future correspondence to me directly
at .
Yours faithfully
The Rt Hon Alex Salmond
[Redacted]