Review calls for changes to Scottish government’s sexual complaints procedure

An independent review on Tuesday called for major changes to the way the Scottish government deals with sexual harassment complaints, saying the procedure under which former first minister Alex Salmond was investigated was “self-evidently problematic”.

The report by lawyer Laura Dunlop QC is a setback for current first minister Nicola Sturgeon, who signed off on the 2017 civil service-led complaints procedure and has defended it against protests from her predecessor that it is unfair on numerous grounds.

Dunlop’s report adds a new twist to the bitter dispute between the former and current leaders of the Scottish National party, which many in the governing party fear could undermine its push for a second referendum on independence from the UK.

Under an unprecedented legal challenge from Salmond in 2019, the Scottish government conceded its investigation into two complaints against him by female civil servants was unlawful because it was “procedurally unfair” and “tainted by apparent bias”.

Sturgeon insisted at the time that the court defeat was the result of “failure in the proper application” of only one aspect of the procedure, requiring the civil servant appointed to investigate complaints to have had no prior contact with the matter.

But in her report, Dunlop said complaints against former ministers should be investigated and decided independently, not by civil servants who were accountable to the current Scottish government with resulting “obvious” risks of a perception of bias.

“If a civil servant is investigating a complaint against a former minister . . . the ministers to whom they are accountable will either be of the same political persuasion as the person complained about, or not,” she wrote. “This is self-evidently problematic.”

Dunlop’s call for major changes to the review process could increase pressure on Leslie Evans, the Scottish government’s permanent secretary and top civil servant.

Evans was in charge of the civil service in 2017 at a time when the complaints procedure was drawn up as the global “MeToo” movement was raising awareness of unreported sexual misconduct.

Last August, Evans told the parliamentary committee inquiry into the handling of the complaints against Salmond that the procedure had been carefully drafted.

Evans, who was also responsible for ruling on the complaints, and other officials have said that a clause of the current procedure that requires the investigation officer to have had “no prior involvement with any aspect of the matter” was intended to refer only to the original events in question.

But Dunlop said in her recommendations that “anyone involved in factual investigation to any extent of a complaint against a minister should . . . have no close association with either party before or during the investigation”.

Salmond has also suggested the complaints procedure could be unlawful when applied retrospectively to ministers who left government before it was put in place. However, Dunlop said there was no “substantive issue concerning retrospectivity”.

Salmond, who was last year acquitted in the High Court in Edinburgh of all 13 sexual offences charges against him, has accused Sturgeon’s closest associates of a “deliberate, prolonged, malicious and concerted” effort to remove him from public life. He has also said there was a “complete breakdown” of the barriers between government, political party and prosecutors in the nation he led from 2007 to 2014.

Sturgeon’s associates have denied they conspired against him and the first minister has accused her former mentor of peddling wild conspiracy theories.

Jackie Baillie, Scottish Labour deputy leader and a member of the parliamentary committee investigating the handling of the complaints, said Dunlop’s review was a “damning indictment of the SNP” that confirmed the government’s sexual harassment policy was not fit for purpose. 

Douglas Ross, Scottish Conservative leader, said the review showed the government had used a “catastrophically flawed procedure to investigate Alex Salmond”.

John Swinney, Scotland’s deputy first minister, said the government welcomed the review and would work with unions to see how its recommendations could be implemented.

Swinney reiterated the government’s apology to the women who made the harassment complaints against Salmond. “They were let down,” he said.