Scottish Government risking contempt of court over Alex Salmond harassment report
In May, The Scotsman revealed Scottish Government ministers had been found to have acted unlawfully after they attempted to claim the report into the former first minister’s alleged improper behaviour did not exist.
The Scottish Conservatives labelled the failure to abide by the ruling as showing “total disdain” towards the commissioner and transparency.
The report in question includes the results of the civil service investigation into the complaints against Mr Salmond.
The former SNP leader succeeded in having the legal force of the decision report reduced following a judicial review challenge that was conceded by the Scottish Government on the grounds the report was “tainted by apparent bias”.
This cost the Scottish Government more than £500,000 in legal costs and Mr Salmond was later acquitted of criminal sexual offence charges in a high-profile trial in March last year.
In response to a Freedom of Information request from this newspaper in September 2020, Scottish Government officials initially claimed they could not release the report due to legal privilege, contempt of court, personal information, and potential prejudice to the conduct of effective public affairs.
However, following a review officials claimed the report was not held by the government and did not exist – an argument rejected as “overly pedantic” and “overly legalistic” by the commissioner Darren Fitzhenry.
As part of the ruling, ministers were required to submit a fresh outcome of the appeal by July 12, but failed to do so.
This puts ministers at risk of being found to be in contempt of court.
The enforcement section of the commissioner’s ruling states: “If the ministers fail to comply with this decision, the Commissioner has the right to certify to the Court of Session that the ministers have failed to comply.
"The court has the right to inquire into the matter and may deal with the ministers as if they had committed a contempt of court.”
A Scottish Conservative spokesperson said the failure to respond meant ministers were attempting to “brush it under the carpet”.
The spokesperson said: “It is clear that SNP ministers are trying anything to avoid responding to this ruling. At every turn during the inquiry they failed to be transparent and it appears that attitude hasn’t changed one bit.
“Even when they have had weeks to come to a decision, they are still hoping that they can brush it under the carpet.
“It is an extraordinary situation to reach that ministers may end up being investigated for acting like they had committed a contempt of court. They are showing total disdain towards the Commissioner, who has already found they acted unlawfully almost two months ago.
“It is time for them to be upfront and urgently respond to this matter.”
Nicola Sturgeon spent the majority of the first part of this year dogged by criticism around how the investigation into Mr Salmond’s conduct was handled by the Scottish Government and her involvement in the scandal.
In March, a Scottish Parliament inquiry into the fiasco concluded the First Minister had misled the harassment complaints committee as to whether she had agreed to intervene in the complaints process.
However, a separate inquiry by James Hamilton, the independent advisor on the ministerial code, concluded the SNP leader had not breached the code of conduct for ministers.
Following the chastening conclusions of the inquiry and Mr Hamilton’s report, the Scottish Government announced in June that complaints against ministers will no longer be investigated by civil servants.
This followed a review published in March by Laura Dunlop QC that recommended such a move.
As part of the plans, the complaints procedure implemented in 2017 will be scrapped and an “external, independent procedure to oversee formal complaints about former and current ministers’ behaviour” would be set up.
The government added that a “propriety and ethics team” would also help ensure the “highest standards” of behaviour across the civil service.
There are also plans to improve the government’s information storage and records use following criticism around failures to provide key documents to court during Mr Salmond’s judicial review.
A Scottish Government spokesperson said: “We have received the commissioner’s decision and apologise to the requester for the length of time it is taking to respond.
"This case raises a number of complex and sensitive issues that we need to consider carefully before responding. We will do so as soon as possible.”
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