David Davis: Scotland – A deficit of power and accountability

For the past few months, Scotland has been transfixed by the Holyrood inquiry seeking the truth of what went wrong with the investigations into the former First Minister, Alex Salmond.  The inquiry is investigating matters of the most serious kind. Serious for the proper handling of sexual harassment complaints in Scotland. Serious for the accountability of those in positions of power, including the Scottish Government’s Permanent Secretary and its Lord Advocate. And serious, if the former First Minister’s claims hold any water, for the future of the present First Minister’s administration of Scotland. These matters are unquestionably something that should properly be dealt with in Holyrood. But Holyrood has great difficulties exposing what went on. The inquiry has come up against endless impediments in its efforts to fulfil its remit.

These difficulties can be traced back to the Scotland Act 1998 in which the British Government of the day, and this House, decided to devolve power to a Scottish Parliament, but failed to do it properly. These failures were broadly on three fronts. First, this House failed to guarantee separation of powers to Scotland. We have known for centuries that the separation of powers is fundamental to a functioning democracy.  Yet in Scotland, the Lord Advocate both leads the prosecution service, and serves in the Scottish Cabinet. This leaves him conflicted and compromised, with his Department’s independence undermined.  Second, the Scottish Civil Service was left as a part of the wider UK Civil Service. It therefore does not have its own mechanisms of control and accountability in place but is only loosely controlled by Whitehall as we shall see in a moment. The result has been tolerance of failings which ordinarily would have led to resignations.  Third and most important, Scottish Parliamentarians were not given the same powers and privileges that MPs of this House enjoy.  This means that evidence relevant to the Holyrood inquiry can be freely discussed here today using parliamentary privilege. But if an MSP in Holyrood were to do the same, they would likely find themselves facing down prosecution. Indeed, the Crown Office has been making such threats to Mr Salmond’s lawyers, to various journalists and even the Holyrood inquiry itself. They made clear that they would deem disclosure of evidence to a committee of elected representatives to be a criminal offence. We have, in effect, given the Holyrood inquiry the right to summon evidence, but not to use it.

It is because of these failings I have brought this debate today. We need to reinforce the ability of the Scottish Parliament to hold its own government to account. I’m here to strengthen the Scottish Parliament, not to bury it. A few weeks ago, I was passed some papers from an anonymous whistle-blower. The information consisted of a download of text messages from the telephone of Sue Ruddick, the Chief Operating Officer of the SNP.

At this point the SNP Chief Whip intervened on a point of order.

Thank you Madam Deputy Speaker, I have I think brought whistleblower views to the attention of this House on about a dozen occasions in the last 20 or 30 years and in every single occasion I have protected the innocent people involved.

Now the download I am talking about – Sue Riddick’s telephone download is held by the Scottish Police, so the accuracy of the account can be checked if they need to. Now Alex Salmond has asserted that there has been a ‘malicious and concerted attempt to remove me from public life in Scotland’…by… ‘a range of individuals within the Scottish Government and the SNP’ who set out to ‘damage [his] reputation, even to the extent of having [him] imprisoned.’ These are incredibly grave charges.  The whistle-blower clearly agrees with those charges.  He or she starts their communication with the assertion that the evidence provided, and I quote ‘point to collusion, perjury, up to criminal conspiracy.’ Since I received the data it looks as though the committee has received at least some of it themselves, and some has also been put in the public domain by the Hon Member for East Lothian, a previous Justice Secretary in that Scottish government. It was described anonymously by one of the committee members as ‘just private conversations that we had no business intruding on’. Well I will let the House judge the truth of that. No single sequence of texts is going to provide conclusive proof of what the whistle-blower described as a ‘criminal conspiracy’.  But it does show a very strong prima facie case which requires further serious investigation, by which I mean at very least a thorough review of all the emails and other electronic records for the relevant personnel at all the relevant times.

Now for example, these texts show that there was a concerted effort by senior members of the SNP to encourage complaints. The messages suggest that SNP Chief Executive Peter Murrell coordinated Ruddick and Iain McCann, the SNP’s Compliance Officer, in the handling of specific complainants. On the 28^th September, a month after the police started their investigation of the criminal case, McCann expressed great disappointment to Ruddick that someone who had promised to deliver five complainants to him by the end of the week had come empty or ‘overreached’ as he put it. One of the complainants said to Ruddick she was ‘feeling pressurised by the whole thing rather than supported’. In the day following the Scottish Government’s collapse in the judicial review in January 2019, Ruddick expressed to McCann the hope that one of the complainants would be ‘sickened enough to get back in the game’. Later that month, she confirmed to Murrell that the complainant was now ‘up for the fight’ and ‘keen to see him go to jail’. Ruddick herself in one of her texts expressed nervousness about ‘what happens when my name comes out as fishing for others to come forward’. Note again this was after the criminal investigation into Salmond had commenced. This is improper, to say the least. Contact with, and influence of, potential witnesses is totally inappropriate once a criminal investigation is under way.

That was known inside the SNP itself. The text messages reveal that at an SNP National Executive Committee meeting early in January 2019 the Hon Member for Edinburgh South West raised concerns amongst staff at Westminster that SNP headquarters were engaged in the ‘suborning’ of witnesses, whilst on the 28th August 2018 a senior member of SNP staff in this building described in an email the SNP headquarters move against Salmond as a ‘witch hunt.’ Shortly after charges were brought against Salmond, Peter Murrell sent messages saying it was a good time to be ‘pressurising’ the detectives working on the case, and that ‘the more fronts [Salmond] is having to firefight on the better for all complainants’. When the Inquiry put these messages to Mr Murrell, he said that they were ‘quite out of character’. That is no defence, even were it true. But having seen evidence of other messages, it seems to me they were all too much in character for Mr Murrell. In a committee evidence session on 8th December last year Mr Murrell replied under questioning that there were no more messages of the type already in the public domain from January 2019. That statement delivered under oath is hard to reconcile with the dozens of messages stretching over a period of months from September 2018, which I have now seen. There is more, but it would take the whole of this debate to read them out. I believe the committee needs to gain access to all of this information. I would just say to the anonymous committee member that described them as ‘just private conversations’ that they should understand that meddling in an ongoing police inquiry is at best improper, and at worst criminal. So, it requires proper investigation. And if the committee does not feel it can do the job, perhaps it should ask the police to do so instead.

Which brings us to the complaints process Mr Salmond was subjected to.  Now this process was new. Created in late 2017, it was different to existing Scottish Government complaints procedures in a number of ways, including being retrospective, lacking a mediation procedure, and extraordinarily, applying to previous ministers but not to previous Civil Servants. The procedure was shared with the Head of Propriety and Ethics in Whitehall, who expressed discomfort with the proposals and specifically asked if this was only to apply to ministers not civil servants. As far as I can tell Madam Deputy Speaker she did not get a reply. It is hard to imagine a Department in Whitehall essentially ignoring concerns expressed by the Head of Propriety and Ethics, which is one of the reasons I want Whitehall to review the checks and balances built into the Scottish Civil Service. However, the Scottish Government also ignored its own policy, the new policy and appointed an Investigating Officer who it emerged had had prior contact with the complainants. And not just any contact. A potential complainant was asked for their input on the draft procedure before they had formally made their complaint. So, they did not consult women’s advocacy groups - which would have been proper. They did consult trade unions, but not in a proper or timely fashion. Instead, input was sought from the very first complainant whose case would be investigated. Mr Salmond sought judicial review of the process and in due course this complaints procedure and process was judged by Lord Pentland in the highest civil court in Scotland to be ‘unlawful’, ‘unfair’, and ‘tainted by apparent bias’. An astonishing judgment, backed up by the maximum possible punitive award of costs.

The judicial review of 2018 itself led to further extraordinary behaviour by the Scottish Government. In her evidence before the Holyrood inquiry, the First Minister of Scotland, Nicola Sturgeon, said her Government’s external counsel were ‘confident’ at the outset of the civil case that they would be successful.  That is a significant mischaracterisation of the advice. The government’s external Counsel had identified a central vulnerability in the Scottish Government’s case – the complaints procedure, under which Salmond was investigated, had a real risk of being found to be unfair.   Counsel stated, ‘vulnerability arises from the Procedure itself, and not from its implementation in this particular case’.  We now know Counsel came to this conclusion without being given the full facts of the case. Facts that in due course took it from being an arguable case to being a completely unarguable one. External Counsel, Roddy Dunlop QC, gave that first assessment of their chances in late September. By the end of October, he is clearly worried the government had not disclosed important facts about their operation of the process and says at that point it made ‘little sense to continue to defend the indefensible’. Within a few days he is advising that the ‘least worst option’ is to concede the case. By the 14th December the obvious failure of the government to meet its duty of candour leads to a Commission and Diligence Committee to be appointed to establish the real facts. On the 19th December, after the first meeting of that Commission the government’s external Counsel tells the government that: ‘With regret, our dismay at this case deepens even further….Suffice to say that we have each experienced extreme professional embarrassment as a result of assurances which we have given, both to our opponents and the court, which assurances have been given on instructions, turning out to be false as a result of the revelation of further documents.’ The Scottish Government pressed on despite counsel’s continued concerns about their ‘untenable position.’ Most remarkably, Counsel told the Scottish Government they were personally horrified’, and they could ‘no longer rest on pleadings that [they knew] to be untrue’. The defence had collapsed because of the government’s lack of candour.

Mr Salmond was very fortunate that the government’s counsel, Mr Roddy Dunlop, now Scotland’s leading QC, behaved with impeccable honour and honesty throughout. And let us be clear, this was not just a case of a government that failed to provide information because it could not manage its own filing systems. This was a government that actively withheld important, relevant information. In one case a critically relevant email was actively removed from an information bundle that was going to the court and which had already been approved by government counsel. I don’t know who took that email out – I have it here. I don’t know who took it out, I don’t know who gave the instruction. But in my view the removal of that document would be a summary dismissal offence, and possibly a criminal offence. At the very least it would be in contempt of court. And yet over his three evidence sessions the Lord Advocate, the Chief Law Officer of Scotland, did not see fit to mention this crucial incident to a Parliamentary committee trying to get to the truth. It only came to light just 10 days ago when the government was forced to publish its legal advice.  It was only in January 2019, after months of increasingly damning advice, that the Scottish Government faced the inevitable and conceded the judicial review.  Costs were awarded against the Scottish Government at a punitive level reserved for defences conducted ‘incompetently or unreasonably’.

The Scottish public will now pay the bill for their Government’s dogged pursuit of a doomed case. More than that, the Scottish Government behaved in a way that was misleading to the court, in a case that had serious implications for the criminal case that was to follow. The charges in that case were very serious. Had Mr Salmond been guilty of them he would quite rightly have gone to prison, and his reputation would have been destroyed forever. Yet the government were willing to play fast and loose with the facts in a way that, if it had succeeded, would have jeopardised the whole process of justice. For me that is even bigger than the grotesque waste of a million pounds. As it was, of course, he was exonerated on all charges by a predominantly female jury in a criminal court presided over by a female judge. The Scottish Government had committed abuses of process in the initial investigation. It had failed to live up to its duty of candour in court with an indefensible case so at this point you might expect some contrition. Instead, the Scottish Government has now set its sights on impeding the committee tasked with investigating the whole affair. The members of the Holyrood inquiry are valiantly struggling to do their job. Or at least some of them are. But time and again they have been frustrated. The inquiry has had to cope with evasiveness from the Scottish Government and the constant threat of legal action by the Crown Office – the Scottish equivalent of our Crown Prosecution Service.

First, the Crown Office intervened by barring the publication of the evidence of Geoff Aberdein, Mr Salmond’s former chief of staff. This evidence is critical in determining whether Nicola Sturgeon breached the Ministerial Code. It is clearly in the public interest to see this evidence. However they aren’t allowed to publish it so I have a suggestion for the committee. I have it on good authority that there exists from the 6^th February 2018 an exchange of messages between civil servants Judith McKinnon and Barbara Alison, suggesting the First Minister’s Chief of Staff is interfering in the complaints process against Alex Salmond. The Investigating Officer complained ‘Liz interference v bad’ – I assume that means very bad. If true, this suggests the Chief of Staff had knowledge of the Salmond case in February, not in April, as she has claimed on oath. The First Minister also tied herself to that April date in both Parliamentary and Legal statements. She was of course aware earlier than that: the question is just how aware and how much earlier. Second, the Crown Office intervened to see that the evidence of the former First Minister was redacted, supposedly to protect the identity of the complainants – the point the Honourable gentleman made, quite properly, earlier. Again, this redacted evidence focused on whether or not the First Minister breached the Ministerial code.

The Spectator magazine had already published online his entire evidence with only a single paragraph redaction. But when The Spectator went to court to secure the publication of that evidence, the Crown Office made no objection whatsoever to the paragraphs it bullied the Holyrood inquiry to redact. This leaves an absurd situation where the inquiry cannot speak about evidence that is freely available to anyone with an internet connection. The redactions are clearly therefore not designed to protect the complainants. They are designed to protect the First Minister from accountability to the inquiry. Third, the Scottish Government withheld the damning legal advice given in the civil case. It was only with the threat of a no confidence vote in the Deputy First Minister that the committee could see part – and I emphasise part – of that advice. However, what we do know is that across November and December 2018 there were a series of meetings where it was decided to persist with the judicial review. This was against clear advice from Counsel. Rather extraordinarily these meetings appear to have been largely un-minuted – I rather recommend that they ask for the junior counsel’s notes of course but unminuted. It was only at the last possible minute that the Government conceded the case and only after Counsel had threatened to resign. The First Minister has told the Committee, and I quote, ‘I am not aware that they threatened to resign’. But she will have seen a report that clearly states Counsel ‘in light of their professional duties and their view of the case…will require to withdraw from acting on 3 January’. Fourth, the Scottish Government has repeatedly denied the Committee relevant evidence for what it claims to be legal reasons. This position is nonsensical. There should of course be protections over sensitive material exposed in criminal trials, we agree that. But those protections should not prevent a Parliamentary committee from doing its job of holding Government to account.

Together these form a litany of acts that repeatedly frustrated the Committee and denied the public full transparency and accountability.  They fit squarely into a pattern of evasiveness and abuse of process the Scottish Government has woven from the start. As I said in opening, the proper place for these matters to be determined is Holyrood. It would be eminently preferable for Scottish MSPs to be exposing any relevant evidence. But given the British Government’s failure in 1998 to give sufficient power to the Scottish Parliament, and given the Scottish Parliament derives its authority from this House, certain evidence must now enter the public domain here. The Holyrood inquiry has exposed some critical failings at the heart of the Scottish Government. They failed with the complaints process, they failed to heed legal advice, and they failed to honour commitments made to ensure a transparent parliamentary review. Perhaps more worryingly, the inquiry has revealed the limits of what the Scottish Parliament can expose. There is a deficit of power and with it comes a deficit in accountability. At very least I ask the Minister today to consider an amendment to the 1998 Act to deliver separation of powers to Scotland, something I believe Madam Deputy Speaker a previous justice minister, the Honourable Member for East Lothian, has written to our justice committee about already. So to deliver separation of powers to Scotland, to strengthen the civil service, to reinforce the powers of the Scottish Parliament, and correcting the fundamental power imbalance between the executive and the legislature in Scotland.

Let us give the Scottish Parliament the power to do the job.