The Laura Dunlop QC review, published on Tuesday by the Scottish Government also said it was “obvious” the issue of bias could arise and it was “self-evidently problematic” to have civil servants undertake such an investigation.
The report outlined ten recommendations for the Scottish Government to take forward and offered some commentary on some of the issues raised, but not judged on, during Alex Salmond’s judicial review action around the process.
Among the recommendations include no inclusion of a time limit on complaints, and for “consideration” of whether complainers wishes should be respected in terms of passing on information to the police.
In the review, Ms Dunlop states harassment complaints are “extremely difficult” for any government to appropriately investigate complaints against former ministers.
She said: “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. Moreover, there is a specific issue of accountability inherent in any process which involves civil servants in investigating such complaints.
“If a civil servant is investigating a complaint against a former minister, they have no duty to the former minister, and the ministers to whom they are accountable will either be of the same political persuasion as the person complained about, or not.
"This is self-evidently problematic.”
Recommending complaints against former ministers be handled “independently”, Ms Dunlop suggests potential avenues including the Commissioner for Ethical Standards in Public Life in Scotland or via the independent advisers on the ministerial code.
She also recommends that any allegation is examined in reference to the ministerial code at the time, but warned it would likely be a “onerous step” for any complainer.
Among her other recommendations, Ms Dunlop suggested a potential three-year time limit to complaints other than sexual harassment, and recommended a “screening process” where it is decided how a complaint is handled.
Another recommendation includes the suggestion of a “censure with consent” where a minister would accept unacceptable conduct had taken place.
Reacting to the review, Deputy Firs Minister John Swinney said: “The Scottish Government welcomes this independent review and the constructive, forward-looking recommendations that Laura Dunlop QC has made.
"We will now work with the Scottish Government Council of Unions on how these could be implemented, noting that in some instances it will require us working across institutions to find a way forward.
“Our shared priority is to have in place policies and procedures that allow any future complaints to be raised and investigated with confidence. I would reiterate the Scottish Government’s apology to the women who had the courage to make the harassment complaints – they were let down, and it is only right to ensure that lessons are learned for the future.
“Bullying or harassment of any kind is unacceptable and we want staff to feel safe and supported in raising concerns. We will finalise an implementation plan by June, which draws on the lessons highlighted by this review, as well as the forthcoming report from SGHHC Committee.”