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Policy that led to botched Salmond investigation still in place

By Tom Eden, PA Scotland
·2-min read

An unclear complaints policy that led to an “unlawful” investigation of Alex Salmond has still not been changed by the Scottish Government, according to the civil servant at the centre of the botched probe.

Judith MacKinnon was appointed in 2018 to be the senior investigating officer looking into allegations of sexual harassment by the former first minister.

However, Ms MacKinnon had prior contact with two of Mr Salmond’s accusers, resulting in a judicial review that concluded the investigation processes were “unlawful in respect that they were procedurally unfair and that they were tainted with apparent bias”.

More than £512,000 was awarded to Mr Salmond for his legal fees after he successfully challenged the government’s investigation.

Ms MacKinnon, the Scottish Government’s head of people advice, defended her role in the investigation and said she was “always up front” about having previously spoken to two women who came forward with allegations.

Giving evidence to a Holyrood committee set up to examine the government’s bungled investigation, Ms MacKinnon said she was “shocked” by the outcome of the judicial review.

She told MSPs: “I felt like I had acted appropriately throughout – objectively, fairly and in line with the policy and process.”

On the issue of perceived bias because of her past communications with accusers, Ms MacKinnon added: “I was always up front about prior contact as it was happening and as the judicial review process developed.”

A key aspect of the legal challenge focused on paragraph 10 of the code which covers formal complaints against former Scottish Government ministers.

It states that the investigating officer “will have had no prior involvement with any aspect of the matter being raised”.

Alex Salmond Legal Action
Alex Salmond speaking outside the Court of Session in Edinburgh after it ruled that the Scottish Government acted unlawfully regarding sexual harassment complaints against the former first minister. (Jane Barlow/PA)

Scotland’s top civil servant, Permanent Secretary Leslie Evans, has since acknowledged the paragraph was “open to a different interpretation” than the one the government understood.

Ms Mackinnon said there had “not yet” been any guidance or changes to the section of the policy that undermined the government’s legal position.

Asked by committee member Alex Cole-Hamilton if the “public purse is still exposed to the same risk as it was back in 2018”, Ms MacKinnon replied: “We haven’t used the policy again since, and now it’s under review.”

Following the evidence session, Mr Cole-Hamilton said: “Confirmation that the government is still operating with the same flawed policy is frankly astonishing.

“It’s blindingly obvious that this should have been sorted out a long time ago. The public purse has been left knowingly exposed.

“The public has already lost over £500,000 on a legal challenge over a mismanaged inquiry and now we find that policy is still in operation and is risking future public funds.”