The parliamentary inquiry into a new code of practice to deal with harassment complaints - drawn up in the febrile months after the Harvey Weinstein scandal broke - was tipped to expose murky goings-on at the heart of the SNP. It was set up to investigate not only how the handling of two allegations of sexual misconduct against Salmond - made under that procedure - was botched, but why - having botched it - the Scottish government went on to contest and lose a judicial review brought by the former first minister.
Salmond was later charged with 14 sexual assaults on ten women (reduced to 13 assaults on nine women). He was acquitted on all counts.
On the findings of the parliamentary inquiry hang the reputations and careers of some of the most powerful people in the country: Sturgeon herself, her husband and chief executive of the SNP, Peter Murrell, and Permanent Secretary Leslie Evans.
So far, however, it has proved more Christmas panto than Shakespearean drama. What was billed by Holyrood as a truth-finding exercise - and by Salmond as his moment of vindication - has been a masterclass in evasion.
Far from embracing the demand for transparency, the warring parties have stonewalled the cross-party Committee on the Scottish Government Handling of Harassment Complaints, refusing to hand over documents, while allegedly leaking incriminating information to the press.
“The whole thing has been like wading through treacle,” says Conservative MSP and committee member Murdo Fraser. “We have been given a huge amount of information from the Scottish Government, a huge volume of documents, emails, minutes, but a lot of it is so heavily redacted it is difficult to find much of value.
“The issue is that the Scottish Government decides at its end what it is going to redact and we don’t know what has been taken out. We can’t know what we haven’t seen. It’s like somebody gives you 300 pieces of a jigsaw, but no picture and you don’t know if it’s a 300 or a 500-word jigsaw.”
Fraser said a second obstacle was the Scottish Government’s use of legal privilege “as a shield”.
“And the third is that, because we are not a judicial inquiry, we can’t force people to answer questions,” he said. Even though the witnesses are on oath, the advice we have had is we can’t force them to answer questions. They are there on a voluntary basis. It makes it very frustrating and difficult to get a complete picture.”
In recent weeks, Salmond has offered to take legal action to force the Scottish government to release some of “relevant” documents (so long as the costs are met by the inquiry) while raising data protection issues over documents set to be released.
At the same time, information is reaching the public domain through unofficial channels. One day, Salmond’s lawyers were penning a “ferocious” letter accusing the Scottish Government of leaking a confidential letter on their client to the press. The next, his old ally, MP Kenny MacAskill, was demanding a probe into WhatsApp messages contained in a document passed anonymously to him.
The messages - from Murrell - talk of “pressurising” the police to continue pursuing Salmond after criminal charges were laid. Police Scotland are now investigating this leak. One line of inquiry will be whether the document was part of a dossier released to Salmond’s legal team by the Crown as part of the disclosure process in his trial or from elsewhere.
“All this briefing against each other shows how bitterly divided the camps within the SNP still are,” said one commentator, who has been following the parliamentary inquiry closely.
Back at the inquiry, the frustration of MSPs has been palpable, as successive witnesses insisted they could not recall key moments or answer key questions. During her last appearance, Evans repeatedly said she “could not remember”, “was not aware of” or “had no knowledge” of issues raised by MSPs. Among the things the Permanent Secretary couldn’t remember was whether or not Salmond had ever shouted at her.
The MSPs were equally unsuccessful in their attempts to coax Lord Advocate James Wolffe to disclose the legal advice given to the Scottish Government in relation to the judicial review.
Salmond launched his legal action shortly after the allegations against him were passed to the police, and the story leaked to the Daily Record, in August 2018. Controversially, the Scottish government’s new code of practice allowed complaints to be brought against former as well as current ministers. But Salmond - who had been out of office for three years - claimed it should not have been applied retrospectively.
He won in January 2019 when the Scottish government admitted it had failed to follow its own procedure when it appointed civil servant Judith MacKinnon to head up the internal inquiry because she had had prior contact with the complainants. As a result, the judge ruled the investigation was unlawful and “tainted by apparent bias”.
The Scottish Government was ordered to pay more than £500,000 towards Salmond’s costs. It has been suggested this sum was inflated by the length of time it took to back down, and its dilatory approach to the handing over of documents.
However, some members of the committee suspect the Scottish Government was advised to concede on other grounds as early as September 2018.
Appearing in front of the inquiry, Wolffe repeatedly cited legal privilege, saying the Scottish government does not release legal advice. He held this line despite the fact the Scottish Government has demanded the UK government publish legal advice on issues such as airstrikes on Syria and the EU withdrawal agreement, and has itself published legal advice to the UK infected blood inquiry, the Scottish child abuse inquiry and the probe into Edinburgh trams.
“This might seem like a small thing,” a source close to the inquiry told me, “but the case cost the Scottish taxpayer dear.”
It also matters if earlier legal advice supported Salmond’s view that it was wrong to apply the code of practice retrospectively. Were this to be the case, it would suggest that not only did the government mishandle the implementation of its process, but the process itself was flawed.
Either way, the Scottish government’s reluctance to allow the committee to scrutinise its actions heightens the sense of murkiness. “I have never bought into the idea of a conspiracy against Salmond,” one observer told me, ”but when it’s so difficult to get any answers it does make you wonder what everyone is trying to hide.”
Claims of a plot
The events that led up to the Parliamentary inquiry began in October 2017 with the Weinstein scandal. The Scottish government had already been thinking about revising its Fairness at Work policy - under which complaints about harassment were previously brought. But the explosion of the #MeToo movement, and historic scandals emerging in many large institutions, galvanised the often sluggish Civil Service into developing the new code of practice, which was signed off within three months.
The Scottish government insists the decision to include former ministers was taken to protect victims of historical harassment, but Salmond believes the code was designed specifically to snare him; that he was a victim of a plot to prevent him from returning to frontline politics.
After his acquittal, he pledged evidence he was prevented from leading at the trial would “see the light of day” in front of the committee.
The inquiry, however, has clearly defined parameters: to look at the development and application of the new code of practice. The MSPs are not allowed to pursue any line of questioning that might be seen as relitigating Salmond’s trial, but they have been tasked with investigating the culture within the Civil Service in the years prior to its introduction.
It would be unfair to suggest they have made no inroads. Sir Peter Housden who served as Permanent Secretary between 2011 and 2015 - the period to which all the criminal charges against Salmond related - told MSPs he was aware Salmond could display “bullying and intimidatory” behaviour towards staff, though there were no formal complaints during his tenure. Evans admitted she had learned of media inquiries relating to an alleged incident at Edinburgh Airport in 2015, and had raised them with Sturgeon.
The MSPs have also established that the draft code was shown to two women with so-called “lived experience”, one of whom went on to become a complainant.
But other areas worthy of probing have proved more contentious. Legitimate concerns around issues of identification and defamation have resulted in what appears to be excessive twitchiness, summed up by a moment on the first day, where Evans paused to say: “I am looking around to see whether the convener [SNP MSP Linda Fabiani] is comfortable with what I am saying.”
Earlier in that session, Evans said she couldn’t comment when asked by Fraser if she was aware of reports that female civil servants were advised “not to be alone” with the former First MInister. Her position was backed by Fabiani who deemed Fraser’s question “not entirely appropriate.”
Fraser’s probing related to claims, made at the trial, that rotas had been adjusted to prevent female civil servants having to work alone with Salmond in Bute House late at night.
After some political blowback, Evans said she *was* willing to answer the question and was recalled. This time Fraser asked her if, “without going into any individual cases”, she was aware of any changes in working practices as a result of concerns expressed by staff around behaviour, including the behaviour of ministers.
“No. I am not aware of those changes,” she replied. “I wouldn’t necessarily be aware of those changes unless I was particularly close to that office.”
The inquiry has highlighted a culture of guardedness within the civil service. “Talking to the committee jars against everything they have always been told about protecting the institution and protecting the ministers,” Lib Dem MSP and committee member Alex Cole-Hamilton said.
“Added to this mix, is a very real anxiety about litigation. While MSPs have privilege, they do not.”
Another issue may be a lack of experience. “There isn’t an institutional culture within Holyrood of parliamentary inquiries which are interrogative and investigative, are confident in their own abilities and have clerks that have done this for 40 years,” another seasoned political commentator told me.
“There are clerks in Westminster who prepare questions for the MPs, they work out a strategy for questioning people - whereas I don’t get the sense that’s the case in this one. I get the sense it’s mostly the likes of Murdo Fraser and Alex Cole-Hamilton making it up as they go along.”
The inquiry faces a struggle to untangle what Sturgeon knew when. There are questions to be answered about a series of meetings and phone calls she held with Salmond while the internal inquiry was ongoing.
Previous statements have served only to muddy the waters. Last year, she told Parliament she first learned about the formal complaints from Salmond at a meeting in her home on April 2, 2018.
But, during the trial, it emerged the allegations had been raised at a meeting four days earlier with Salmond’s chief of staff Geoff Aberdein.
Sturgeon also maintains she attended the subsequent meetings with Salmond in her capacity as leader of the SNP rather than as First Minister: in other words that this was party rather than government business. Had it been government business, then - under the Ministerial Code - the “basic facts” ought to have been recorded. Yet in written evidence, Murrell told the committee he wasn’t present at the meetings in their home and that Sturgeon told him she could not divulge their purpose to him. Given his prominent role within the SNP, this suggests the meetings were being treated as government rather than party business.
It is understood the committee also wants to probe suggestions she and others sometimes used SNP emails, rather than government emails, to evade scrutiny.
The Scottish Government’s reluctance to hand over documents has prompted accusations of “breathtaking secrecy” and reinforces a pre-existing perception of the current administration as lacking in transparency. It is also baffling to some observers who believe it is merely delaying the inevitable.
“The PR mantra - that you should put everything in the public domain because it is going to come out eventually - doesn’t normally apply to governments,” one political commentator told
me. “Many stories go unreported. But this is different - there is a mole, a player in the culture war, in every office - this stuff will be leaked.”
Even Sturgeon’s fiercest critics accept her performance during the pandemic means she is currently unassailable. Her approval ratings are soaring, the SNP is forecast to improve its position in next year’s Holyrood elections, and support for independence is at an all-time high.
“That being so, wouldn’t it be wiser to take the hit now, than to run the risk that this drags on into next year?” a source close to the inquiry said. “The way things are going it’s conceivable that, in the end, the committee will say: ‘we did our best, but there were things we were unable to get to the bottom of’. And then the bad smell will linger on.”
Where now for the inquiry?
The parliamentary inquiry still has a long way to go. The Scottish government - backed by Wolffe - has said it is confident more information will be forthcoming.
And if it’s not? Well, the committee is examining its options. It is considering legal action, with or without the former first minister.
The most highly anticipated appearances are those of Sturgeon, Murrell and Salmond, particularly Salmond who may see this as his opportunity to take control of the narrative. Talks are continuing with the two complainers, who will give evidence in private, if at all.
Whatever information emerges is likely to be spun according to pre-existing perspectives; just as Evan’s notorious “We may have lost the battle but we will the war” text can be interpreted either as proof of a vendetta against the former First Minister - or - as she avers - as a restatement of her commitment to equality
The report is unlikely to heal the divide between those who believe Salmond was set up, and those who believe the Scottish government was trying - albeit cack-handedly - to ensure those with complaints of historical sexual harassment were given access to justice.
The point is, either way, the process was botched, with far-reaching repercussions for all involved. The complainants put their faith in a system that let them down and left them prey to ongoing abuse.
“The thing that gets me out of bed in the morning is that this was a procedure designed to help vulnerable people and it utterly failed them,” says Cole-Hamilton. “Not only did it fail them, it left them totally exposed.
“We are frustrated, but we are patient. We are not in a hurry to get through this, we want to do it justice. To make sure this cannot happen again.”