Harassment complaints about former Scottish Government ministers should be probed by independent investigators, rather than the civil service, a new report into the botched handling of allegations against Alex Salmond has said.
The review, by Laura Dunlop QC makes a number of recommendations, and effectively calls for the procedure, developed in 2017 and signed off by Nicola Sturgeon, to be replaced.
Deputy first minister John Swinney said the government would work with civil service unions to implement the recommendations.
The Scottish Government investigation into the former first minister was set aside at the Court of Session after it emerged that Judith Mackinnon, the civil servant leading the inquiry, had substantial prior contact with the two women who complained.
Lord Pentland said her involvement left the findings of her inquiry tainted by apparent bias and unlawful, and the Scottish Government has to pay Salmond’s legal fees in the case, of more than half a million pounds.
In her review, which was commissioned by the government following the court defeat, Dunlop makes ten recommendations, including a call for formal complaints against a former minister to “be investigated and adjudicated (by which I mean reaching conclusions as to facts and as to whether a relevant provision has been breached) independently.”
In the report she warns that 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.”
She adds: "I see independent investigation and adjudication of such complaints as essential.”
This, Dunlop said, could be the Commissioner for Ethical Standards in Public Life or the independent advisors on the ministerial code.
Leslie Evans, the Scottish Government's permanent secretary, has previously told MSPs that it would be "unusual in employment policies to have any independent element until after the procedure has been exhausted".
The policy – developed at the height of #MeToo movement – only covers harassment complaints. Any other issue is dealt with through the Fairness at Work policy.
Dunlop said: “a single process for raising and resolving any complaint by a civil servant against a minister would be preferable”.
The QC added: “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 should be 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."
Other recommendations include removing the time limit in “any process for investigating complaints of sexual harassment against serving or former ministers".
Although she said the civil service should consider including a time limit, "probably of less than three years but with an override provision, in relation to complaints of other types.”
The QC also said the government should allow a complainer’s wish to avoid police involvement to be respected - though she acknowledged this may be difficult.
In a letter to the Holyrood harassment committee, 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."
Responding to the publication of the review, Allan Sampson, the FDA union’s national officer for Scotland, said: “We welcome Laura Dunlop QC’s report as an authoritative and detailed account of the issues that led to the legal challenge of the investigation into the former first minister. Her conclusions that complaints of sexual harassment should face no time bar, that former ministers should remain subject to the procedure and that the current policies should be merged for clarity, are particularly welcome. She makes a number of recommendations which we broadly support but will require further consideration as to how these can be integrated in to the current procedures.
“Her report, however, misses a crucial opportunity to recommend a fully independent process for handling all complaints against ministers and former ministers. It seeks to make a distinction between the necessity for independence related to former ministers without addressing the inherent conflicts and weaknesses in relation to serving ministers, which have been brutally exposed by the events of the last three years. A fully independent process to deal with complaints against both former and current ministers will provide confidence to civil servants and ministers alike that any complaint would be determined by merit alone, free from accusations of a ‘cover up’ or ‘conspiracy’ that have been thrown around with abandon in recent months.
“Confidence in the procedure for handling complaints against ministers needs to be urgently restored. Independence, clarity and transparency all need to be established urgently if this is to be achieved.”
Scottish Labour deputy leader Jackie Baillie said Dunlop's review proved that the Scottish Government’s sexual harassment policy was "not fit for purpose."
The MSP added: “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."
Scottish Conservative leader Douglas Ross accused the Scottish Government of burying the review "late in the day after a lockdown easing statement."
He added: “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."
Andrew Learmonth is a journalist for CSW's sister title Holyrood, where a version of this story first appeared.