A review into the complaints procedure for claims of harassment by current or former ministers has called for allegations to be investigated independently, rather than by the Scottish Government.
The report by Laura Dunlop QC was commissioned after the Government’s investigation of sexual harassment allegations against Alex Salmond was found to be unlawful.
Ms Dunlop makes a range of recommendations about how complaints against current and former Government ministers should be handled, including allowing complainers to refuse police involvement and for claims to be investigated by an independent body, rather than Government civil servants.
Referring to the revelation that Judith Mackinnon, the woman tasked with conducting the investigation into Salmond, had previously contacted the complainers before her appointment to the role, Ms Dunlop said anyone investigating a claim must be “free of prior involvement with any aspect of the matter being raised”.
“It is clear that the investigating officer’s involvement with the complainers’ side of the process was considered to have been too close to be considered fair,” Ms Dunlop states.
She added: “My suggestion would be a requirement that anyone involved in factual investigation, and/or preparation of a report, should have had no prior involvement with any aspect of the matter being raised, and should have no close association with either party before or during the investigation.”
On the issue of independently investigating complaints, Ms Dunlop states: “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.”
Her recommendation is that formal complaints against former ministers should be “investigated and adjudicated” independently, and suggests that it could be done either by the Commissioner for Ethical Standards in Public Life in Scotland, or the Independent Advisers on the Ministerial Code.
The Holyrood inquiry into the government’s botched investigation of the former first minister also heard evidence that the two complainers had not wanted their case passed to the Crown Office and police, but that the Scottish Government decided to do so regardless.
Ms Dunlop notes that the current policy, which remains in place despite Mr Salmond’s successful legal challenge, gives “no indication that person’s wish not to involve the police may in some situations be respected”.
She, instead, suggests the Government give consideration to allow any complainer to avoid police involvement if that is what they want.
Another recommendation is for there to be no time limit for complaints of a sexual nature, but other harassment complaints would have to be reported within three years – albeit with an “override position” if there is deemed to be a public interest in pursuing a historic case.
Ms Dunlop, who is Procurator to the General Assembly of the Church of Scotland, also suggests that the Government should adopt a “process of censure with consent” used by the church, which would require a minister to formally accept they have behaved inappropriately.
Deputy First Minister John Swinney said the Government would consider the recommendations for strengthening the process for handling harassment complaints, alongside the anticipated report from the Committee on the Scottish Government’s Handling of Harassment Complaints (SGHHC) and James Hamilton’s inquiry into whether Nicola Sturgeon breached the ministerial code.
He 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.
“I am grateful for the attention Laura Dunlop has given to these important matters.”
Scottish Conservative leader Douglas Ross said: “It’s clear why the SNP government tried to bury this review late in the day after a lockdown easing statement.
“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.”