THE flaw that cost taxpayers more than £500,000 in a legal battle with Alex Salmond almost two years ago has still not been fixed, it has emerged.
The Scottish Liberal Democrats said it was “frankly astonishing” that the Scottish Government - and public purse - remained exposed to a repeat of the problem.
The failing emerged during evidence to the Holyrood inquiry into how the Government botched its probe into sexual misconduct claims against Mr Salmond in 2018.
The former First Minister had the whole exercise set aside in a judicial review, showing the process had been unlawful and “tainted by apparent bias”.
The collapse of the Government’s defence in January 2019 left taxpayers with a £512,000 bill for his costs.
The critical Government mistake had been to appoint an investigating officer, Judith MacKinnnon, who had been in prior contacts with Mr Salmond's two accusers.
This was in spite of the Government procedure for handling complaints against current and former ministers stating, at Paragraph 10, that the investigating officer “will have had no prior involvement with any aspect of the matter being raised”.
It was not until August this year that the Scottish Government appointed Laura Dunlop QC to lead a review of the procedure, and offer advice on strengthening Paragraph 10.
Giving evidence to the inquiry via audio-link today, Ms MacKinnon said her prior involvement with the accusers had been known to her superiors and the Scottish Government’s legal department from the outset, but had not been interpreted as a problem.
She said she had been “shocked” when it caused the collapse of the Government’s defence.
She was asked if there had been remedial action to beef up the procedure in light of Mr Salmond’s case.
LibDem MSP Alex Cole-Hamilton asked if there was now “sufficient guidance” behind Paragraph 10 to ensure the “difference if interpretation” could never happen again.
Ms MacKinnon, the Government’s head of People Advice, replied: “Not yet is the short answer. The Dunlop review has been instigated to review the policy as it currently stands.”
Mr Cole-Hamilton said: “So the public purse is currently exposed to the same risk as it was back in 2018?”
Ms MacKinnon said: “We haven’t used the policy again since and now it’s under review.”
Later, Mr Cole-Hamilton asked former HR director Barbara Allison, now the Government Director for Communications, Ministerial Support & Facilities, the same question.
He said: “This was a half-million pound mistake that was made. We’ve just learned from Judith MacKinnon that two years after that case collapsed the policy is still live and still open to the misinterpretation that led to the judicial review’s collapse.
“Has there been, in your experience, any attempt in the last two years, other than the Dunlop review, to take remedial action on particularly Paragraph 10 of the procedure.”
Ms Allison replied: “I’m not aware of any.”
After the inquiry session, Mr Cole-Hamilton said: “Confirmation that the government is still operating with the same flawed policy is frankly astonishing.
“It’s blindingly obvious that this should have been sorted out a long time ago. The public purse has been left knowingly exposed.
“The public has already lost over £500,000 on a legal challenge over a mismanaged inquiry and now we find that policy is still in operation and is risking future public funds.
“The government appears to have failed to learn basic lessons from this half-million pound mistake.”
Labour MSP Jackie Baillie added: "Their [the Scottish Government's] handling of this whole debacle has been mired in incompetence and yet they have still not learnt lessons with no guidance developed in the past two years to make the policy around the role of an investigating officer unambiguous.”
When Mr Swinney announced the Dunlop review in August, he said it had been delayed because of the separate criminal proceedings against Mr Salmond.
These culminated in a trial in March this year at which he was acquitted of sexual assault.
Mr Swinney said that since then, the review had been help up by coronavirus.
“The attention of the Government has been focussed on leading Scotland’s response to the global health emergency,” he said.
There is no public timetable for the review.
Its findings and recommendations will merely be published “in due course”.
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