Scottish Government was ‘ahead of the pack’ with harassment policy, perm sec says

But Leslie Evans accepts policy used to investigate complaints against Alex Salmond was "designed as an HR procedure, not a legal instrument"
Leslie Evans appears before MSPs on 18 August

By Jim Dunton

18 Aug 2020

Scottish Government permanent secretary Leslie Evans has defended the decision to create and implement a new harassment-complaints policy, even though it was judged to be unfair when challenged in court by former first minister Alex Salmond.

Giving evidence to a committee of MSPs, Evans said that the government had a duty of care to its staff and was seeking to challenge a “say nothing” culture when it decided to develop a procedure to investigate complaints of harassment in relation to current and former ministers in 2017.

“The Scottish Government remains ahead of many other institutions in designing and implementing such a procedure openly and transparently; and particularly one to address historical allegations of sexual misconduct,” Evans told yesterday’s hearing.

She said the work had built on expectations set out in the Ministerial Code and the existing Fairness At Work policy and had been informed by legal advice and “HR best practice”, along with input from trade unions.

“As civil servants, every process we create must be robust and fair,  open to appropriate challenge and scrutiny and respect our civil service code and its core values of integrity, honesty, objectivity and impartiality,” she told MSPs.

“Creating this new HR procedure was no different. There was an extensive and iterative professional drafting process led by the team in the Scottish Government which is responsible for offering advice on the operation of the Scottish Ministerial Code and all matters of propriety and ethics.”

However, Evans accepted that the policy had been “designed as an HR procedure, not a legal instrument”.

Salmond’s successful challenge against the processes used to investigate allegations of sexual harassment made against him resulted in the Scottish Government last year agreeing to pay £512,000 towards the former first minister’s legal costs.

Evans told MSPs that it would have been “unconscionable and a failure in our duty of care not to investigate those complaints”.

But she added: “However, it was accepted at judicial review that one part of our procedure should have been applied differently. I apologise unreservedly to all concerned for this procedural failure.” 

The Scottish Government conceded at the Court of Session in Edinburgh that it had breached its own rules by appointing an investigating officer who had "prior involvement" in the case.

The judicial review was separate to a police investigation that resulted in a criminal charges being brought against Salmond. In March this year, the former SNP leader was cleared of 13 sexual offence charges at the High Court in Edinburgh. An extra count was found “not proven”.

The charges were brought in relation to complaints by nine women who had been working for either the Scottish Government or the SNP at the time Salmond was first minister.

Evans told MSPs on Tuesday that the Scottish Government had “been on the journey of cultural change since 2015” to ensure the organisation was more open, capable and responsive.

“As permanent secretary I have led a focus on equality, inclusion and wellbeing, including addressing bullying and harassment,” she said. “This is still work in progress, but there is evidence of improvement.”

She said the Scottish Government had “learned early lessons” from the judicial review and was awaiting the findings of an external review being led by Laura Dunlop QC.

Evans added: “It remains the case that the investigation of those complaints was the right thing to do.”

During Evans’s evidence session, which lasted around an hour and three-quarters, Liberal Democrat MSP Alex Cole-Hamilton noted that the harassment policy was under development at around the same time in late 2017 that a complaint against Salmond emerged.

Cole-Hamilton said the "optics of this are not great" and asked the perm sec whether the shaping of the policy had been “designed to get Alex Salmond”.

Evans replied: “No,  absolutely not.”

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