The case for a public inquiry

Sometimes there are breaking points that can’t be ignored. The inquiry into the Scottish Government’s handling of sexual harassment allegations against Alex Salmond has just suffered another low, dispiriting week.

That does not distinguish the past seven days from any others since the committee began its work but the accumulation of indignities and inadequacies has become too great to bear.

This parliamentary investigation has revealed only how weak and ill-equipped is the parliament leading it. Somehow the Scottish parliament has managed to cast more doubt on its own fitness than that of the government it is tasked with reviewing.

After months of pleading from inquiry convener Linda Fabiani, the Crown Office finally agreed to share further materials with her committee, and only after Holyrood was forced to take the unprecedented step of invoking its powers under the Scotland Act to demand sight of the documents.

The materials it sought were not minor in their nature. They included any digital communications between the chief operating officer of the SNP and the Scottish Government, and any documents germane to the 2018 disclosure to a newspaper of harassment complaints against Salmond.

Only now, in the dying days of this probe, have the MSPs nominally running it been given access to these productions.

There are conscientious MSPs on the inquiry and they have done much and very creditable work to get to the truth. But their efforts have been hindered by the nature of the committee itself.

Of the nine current members, seven have no legal education or training, including the convener. They ask questions that parliamentarians would ask, some of which are incisive but most of which lack the necessary forensic depth and interrogative nous.

Lawyers can be a nuisance but they are a valuable nuisance. They know what questions to ask, of whom, in what order, and how to elicit answers – or damn the witness who fails to provide them. They do not greet forgetfulness or inconsistent evidence with arched eyebrows and exasperated sighs.

They are adversarial because, in their profession, what is at stake is typically a person’s liberty or reputation or the doing of justice itself. Law is not a process that can end in wrung hands and focus-grouped apologies.

The respected legal academic Alistair Bonnington notes a ‘strong suspicion that this committee was given the job precisely because it would have insufficient expertise or powers to investigate adequately’.

Professor Bonnington is not alone in this view among legal experts. The committee appears not only to be fatally flawed but flawed in such a way as to raise questions about the motive behind establishing a parliamentary probe rather than a more robust inquiry.

Whatever the diligence of its members, this inquiry is not robust. It has previously had to suspend its activities because of what it termed ‘obstruction’.

The First Minister who promised to ‘fully co-operate with the committee and its inquiry’ has instead tendered evidence arising from a ‘forgotten’ meeting and at odds with the evidence of SNP chief executive (and her husband) Peter Murrell.

Her government has refused to hand over its legal advice and to let witnesses appear. Where it has come before the panel, it has repeatedly had to revise its evidence despite having spent £55,000 ‘preparing’ civil servants to appear.

The Holyrood inquiry has already failed before it has concluded. In truth, it had failed even before it began. Every day — or, more specifically, every Tuesday — that MSPs continue to participate in these empty theatrics is another day in which we get further from, not closer to, the truth of what happened.

A faulty process does more than fail to reach a just outcome; it makes it more difficult for a thorough process, at some point down the line, to do so either. Poisoned roots can only ever produce poisonous fruits.

The only way forward is for the Holyrood inquiry to be dissolved and for parliament to pass legislation requiring ministers to establish a judge-led public inquiry into this entire saga.

This is not about party politics or the constitution. It is no longer simply about Alex Salmond and Nicola Sturgeon. It is about public confidence in the integrity of government in Scotland.

The nature of what is being alleged — or at least heavily implied — is impossible to overstate. In his most recent submission, Salmond claims to have a witness who was told by a special adviser in 2018 ‘the government knew they would lose the judicial review but that they would “get him” [i.e. Salmond] in the criminal case’.

Salmond loyalist and East Lothian MP Kenny MacAskill asserts the existence of a secret WhatsApp group — nicknamed ‘Vietnam’ — in which senior SNP figures allegedly discussed ‘putting pressure’ on one complainer to give evidence against the former party leader at his criminal trial, at which he was cleared of all charges. MacAskill claims the group chat discussed how to get the complainer ‘back in the game’.

In its simplest and most emphatic terms, the proposition here is that the Scottish Government conspired politically against the former First Minister and employed the apparatus of the state to carry out its plot.

The mere insinuation, regardless of its veracity or otherwise, is incendiary. The implications were such a narrative to be confirmed, or given the impression of confirmation, would be to make Watergate look like a two-bit hotel burglary by comparison.

The Scottish parliament is not capable of reaching the truth in this matter. Information central to the events under investigation, information without which it is impossible to fully understand what is alleged to have happened, cannot be divulged to the general public.

Much of the evidence heard would be better assessed by those learned in the law. A public inquiry could be given an expanded remit beyond the narrow terms set for the Holyrood committee. It could interrogate all sides and all evidence with the rigour that has been lacking so far. It could give the public confidence with a process that is robust, disinterested and unbound by parliamentary timetables or political considerations.

Fabiani’s committee has reached a breaking point and so has the indulgence the rest of parliament can continue to grant it. An inquiry designed as an exercise in damage limitation cannot and will not get to the bottom of the events in question. Not because the committee members do not want to but because the scope of the process is too restrictive.

Much about this inquiry seems recondite to the public and far removed from their everyday concerns, especially in the middle of a pandemic. But neither public apathy nor legal complexity should stand in the way of answering this most vital of questions: are public officials in Scotland above accountability and even the law itself?

The answer must be ‘No’ but the only forum in which it can be ensured is a public inquiry.


Originally published in the Scottish Daily Mail. Letters: scotletters [insert @ symbol] Feature image: collage of images © Scottish Government by Creative Commons 2.0.

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