HARASSMENT complaints against Scottish ministers must be taken out of the hands of civil servants to avoid a repeat of the Alex Salmond fiasco, a review has said. 

Laura Dunlop QC said it was “essential” that any future complaints were investigated and adjudicated independently by outside watchdogs, as the current in-house system was "self-evidently problematic".

She said it would be “particularly challenging” to show neutrality if an investigation was run by civil servants bound by their accountability to the government of the day, and the risk of perceived bias was "obvious".

The Scottish Tories criticised Nicola Sturgeon for signing off the current procedure, which was developed in a rush after the #MeToo protests of late 2017.

Labour said it was clear the process had never been "fit for purpose".

Ms Dunlop said: "It is however extremely difficult to fit such episodes, and their investigation, into any structure connected to the government in power when the allegations come to light.

"The government of the day will either be of the same political complexion as the former Minister complained about, or not. This is a political context.

"The risks of perception of bias, either in favour of or against the person complained about, are obvious.

"Ifa civil servant is investigating a complaint against a former Minister, they have no duty to the former Minister, and the Ministers to whom theyare accountable will either be of the same political persuasion as the person complained about, or not.

"This is self-evidently problematic."

The conclusion is likely to heap further pressure on the Scottish Government’s top official, the Permanent Secretary Leslie Evans, to resign over the Salmond affair.

It was Ms Evans who helped draw up the complaints procedure used against Mr Salmond in 2018, and who adjudicated on the outcome of a botched seven-month in-house probe.

Ms Dunlop also said that anyone involved in the factual investigation of a complaint against a minister “should be free of prior involvement with any aspect of the matter being raised and should have no close association with either party before or during the investigation”.

Mr Salmond was able to overturn the Government’s probe in a judicial review precisely because investigating officer Judith Mackinnon had been in prior contact with both his complainers before she was appointed.

Ms Evans knew this, and also had contacts with the complainers before her final decision on the probe.

The contacts were in spite of the Government's own complaints procedure ruling out prior involvement for the investigating officer.

Ms Mackinnon's conflicted role meant the Government was forced to concede the entire probe had been unfair, unlawful and "tainted by apparent bias".

In addition, Ms Dunlop said a new process of censure for ministers should be considered, to show acceptance of any “unacceptable conduct” towards staff.

There should also be no time limit on any process to investigate sexual harassment complaints against serving or former ministers, although a three-year time limit, subject to an override provision, could apply to complaints of other kinds. 

The recommendations comes in a 78-page review commissioned by the Scottish Government in the wake of the Salmond affair.

Delayed by the pandemic and Mr Salmond’s criminal trial last year, it finally got underway last August.

Dated March 11, the Scottish Government only released it this afternoon, while Nicola Sturgeon’s route map out of lockdown was dominating the news.

HeraldScotland: Dunlop reviewDunlop review

Ms Dunlop was tasked with reviewing the harassment procedure drawn up by the Scottish Government in the wake of the #MeToo movement in late 2017 which was used against Mr Salmond, with a view to "strengtening its content and future operation".

She effectively called for it to be scrapped, saying there should be a single process, not one for ministers and former ministers plus an existing Fairness at Work policy.

Merging the two would be "sensible", she said.

She said: "This single process needs to allow for informal resolution where possible, which could include mediation for some complaints.

"The single process also needs to allow for the possibility that a complaint raised by a civil servant may raise a question of fitness for office and therefore need to be handled by investigation under the Ministerial Code.

This decision about handling shouldbe taken by an appropriate senior person, either a civil servant or a non-Executive Director, following an initial noting of the allegations and responses carried out by a nominated senior civil servant.

"The aim of the procedure must be not only to investigate the facts but to attempt to resolve the complaint appropriately where this is possible.

"One option worth considering is the introduction of a process of ‘censure with consent’, currently in use in the Church of Scotland, which would involve a formal acceptance of inappropriate conduct on the part of the Minister towards the complainer. The effectiveness of any such process would need to be kept under review.

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"Support needs to be provided for a serving or former Minister against whom a complaint is made as well as to the complainer, and Scottish Government should ensure that arrangements are in place to support both parties.

"To preserve a clear position of neutrality, that support must not come from anyone involved in the factual investigation or decision-taking.

"It may be appropriate to provide a right for a current Minister to seek the appointment of a legally-qualified investigator either instead of or alongside an HR professionally-qualified investigator as an additional demonstration of neutrality.

"Demonstrating neutrality in investigation of formal complaints against former Ministers is particularly challenging if that investigation is to be conducted by civil servants bound by their accountability to the government of the day.

"I see independent investigation and adjudication of such complaints as essential.

"Possible options would include extending the remit of the Commissioner for Ethical Standards in Public Life in Scotland or extending the remit of the Independent Advisers on the Ministerial Code."

Scottish Tory leader Douglas Ross said: “It’s clear why the SNP Government tried to bury this review late in the day after a lockdown easing statement.

“They have tried to shut down scrutiny throughout this affair and today they sneaked out a report that lays bare 10 glaring flaws in the way the SNP Government handles sexual harassment complaints.

“They completely failed the women at the heart of this scandal by using a catastrophically flawed procedure to investigate Alex Salmond.

“The SNP Government were doomed to lose this case. This review spells out that it had no hope of succeeding because of the contact between civil servants and the complainers.

“If the government had not withheld information from their own lawyers, more than £500,000 would have been saved, and Alex Salmond could have been investigated properly.

“They must abandon this disastrous procedure and build one that actually works. Nicola Sturgeon appears to be retaining this 'problematic' procedure to save herself the embarrassment and political damage of admitting they got it badly wrong.

“Until this procedure is fixed, more people can be let down at any moment.”

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Scottish Labour deputy leader Jackie Baillie said: “This review by Laura Dunlop QC is welcome and confirms that the Scottish Government’s sexual harassment policy was not fit for purpose. 

“What is truly astonishing is that the SNP government did not take this advice when developing the policy, instead of rushing it through.

"Had they taken professional advice beforehand they might have devised a fairer, more effective policy; they could have avoided an expensive and failed judicial review and – vitally – protected the women involved.  

“It is a damning indictment of the SNP and their failure that let women down who complained about the former First Minister. 

“The recommendations make it clear that any further complaints of this nature against a former minister must be managed independently and separate from those with any prior interest with any of the parties.   

“The Scottish Government must now implement these recommendations, ensure that such an expensive and damaging fiasco will never happen again and that there is a robust policy in place for the future.”  

In a letter to the Holyrood inquiry into the Salmond affair accompanying the review, deputy First Minister John Swinney said: "The Scottish Government accepted that there had been flaws in the application of the procedure for investigating the complaints and that lessons should be learned.

"Laura Dunlop’s review makes a number of recommendations to strengthen the process for handling such complaints in the future, which I welcome.

"We will now work with the Scottish Government Council of Unions, on how these recommendations could be implemented, in the wider context of the Committee’s forthcoming report, and the report from James Hamilton, independent advisor on the Ministerial Code, before finalising an implementation plan which will be published in June by the new administration.

"I am determined the Scottish Government ensures that any future complaints are handled with the utmost sensitivity and professionalism."