TWO YEARS AGO
Two years ago, on 18 March 2021, the Committee on the Scottish Government Handling of Harassment Complaints (the Committee) met for the final time and signed off its Final Report which was published on 23 March 2021.
The day is infamous due to the leaking of some of the Committee’s conclusions before it had even completed its deliberations. At 18:58, James Mathews from Sky News reported the Committee’s conclusions in a tweet and live on air.
Later that evening, the First Minister, Nicola Sturgeon, who was one of those whose actions were under investigation, accused me and my opposition colleagues of having made our minds up before she gave evidence and claimed that we were responsible for the leak.
“What’s been clear is that opposition members of this committee made their minds up about me before I muttered a single word of evidence. Their public comments have made that clear. So this leak from the committee – very partisan leak – tonight before they’ve finalised the report is not that surprising.”
The next day, three of the four SNP members of the Committee (Alasdair Allan, Maureen Watt and Stuart McMillan) issued a media statement accusing me and my opposition colleagues of having ”railroaded though their prejudiced assertions based purely on political considerations,” and alleging that, “for the opposition, this was never about the truth. It was never about the evidence and, shamefully, it was never even about the women. All of these are being sacrificed in pursuit of political ends.”
I remain hurt and angry at having these false allegations made against me but chose to let matters rest at the time. Clearly the First Minister and her colleagues were determined to pin the blame for the leak on us and it was futile to engage in an ongoing war of words over the matter.
This blog seeks to determine who was responsible for the leaking of this information.
I am certain of the following:
- I do not know how the Committee’s conclusions found their way into the hands of Sky News;
- I know that I was not responsible;
- I am confident that no member of the Committee leaked the conclusions directly to James Matthews.
In this blog, I ask cui bono? Who benefits?
This famous principle suggests that the party most likely to benefit from the leak is probably responsible for it.
What follows is first of all a report of the complaints made to the Ethical Standards Commissioner in the aftermath of the Committee’s work, then a chronology of the events leading up to the leak, and finally an analysis of who stood to gain from the leak.
In October 2021, I received a letter from the Ethical Standards Commissioner containing over 50 complaints from individuals that I and other colleagues had breached the MSP Code of Conduct in two ways. The first (Category D complaints) was that I had openly discussed information in the public domain that was confidential to the Committee. The second (Category E complaints) was that I had leaked information (directly or indirectly) to the media that was confidential to the Committee. These latter complaints related to the 18 March leak to Sky News. None of the complainers to my knowledge claimed to have any evidence of any of the complaints that they were making.
The Commissioner used his statutory powers to require that all texts, emails and other information relating to any contact with named media outlets be handed over to him.
In May 2022, the Commissioner wrote to me to say that he had dismissed as inadmissible all of the Category D complaints.
On 6 September 2022, the Commissioner wrote to me to advise that he had concluded his investigation and had dismissed all of the Category E complaints that I had leaked confidential information to the media. Having assessed all interactions between Committee members and the media and related parties, he found no evidence to support the complaints.
However, he went on to say that he had sought legal advice on the possibility of obtaining information on the source of the leak from political parties and media outlets but that there were no reasonable prospects of success were he able to pursue such a course of action. This is not surprising in relation to the media where the protection of sources is a well established principle. But it is an intriguing claim in relation to political parties, given the powers in Section 13 of the Act which allow the Commissioner to compel the production of evidence from almost any person. Failure to do so is a criminal offence (Section 15 of the Act).
In any event, this particular investigation was over – as was another one initiated by myself.
I had long felt that the statement issued by the three SNP MSPs was defamatory and in breach of the MSP Code of Conduct (see end of this blog for full text of their statement). In particular the Code makes clear that MSPs must not provide the media with any comments on Committee reports until they are published.
I did not have the energy nor the presence of mind at the time to make a complaint. I was furious at them for their slurs but wanted to leave the whole sorry saga behind me. But on the first anniversary of the leak, I felt it was time to hold them to account for what I considered to have been a flagrant breach of the Code of Conduct and so on 20 March 2022, I made my own complaint to the Commissioner about their actions.
On the same day that complaints against me were dismissed (22 September 2022), the Commissioner wrote to me to rule that he had dismissed my own complaint against the three SNP MSPs. He did so on the basis that because the conclusions of the Committee were in the public domain as a result of the Sky News report, they could no longer be considered confidential and so were not covered by the confidentiality provisions of the Code of Conduct.
CHRONOLOGY OF EVENTS LEADING UP TO THE LEAK
WEDNESDAY 17 MARCH 2021
The Committee’s inquiry was broken down into four strands of work, namely
The development of the (harassment complaints) procedure
How the complaints were handled
The judicial review of the process
The Scottish Ministerial Code
The Committee agreed early on to present conclusions on all four of these strands.
Over many meetings in February and March 2021, the Committee considered drafts of the Final Report. By 17 March 2021, we had not yet agreed the section of the report on the Ministerial Code. We had agreed that we would not come to any conclusions on whether the First Minister had breached the Ministerial Code. This was the subject of a separate investigation by the Independent Advisor on the Ministerial Code, Mr James Hamilton. However as the Committee’s report makes clear:
653. Mr Hamilton will gather his own evidence and reach his own conclusions in his own report. He will do so independently of this Committee and he is not obliged to take into account any conclusions we reach. Nor do we think it would be appropriate for us to seek to direct Mr Hamilton’s work or influence his own conclusions.
654. However, it remains the case that the Ministerial Code is also in our remit. We have conducted our own evidence taking on this subject. We consider it important that we report to the Parliament on the Ministerial Code in order to fulfil our remit.
By 17 March 2021, we still had no draft conclusions on the Ministerial Code strand.
At 09:53 on the Wednesday, the Clerk sent an email to Committee members with an attachment containing some suggested amendments from three members of the Committee. None were drafted in the form of actual text that could be added to the report but were instead arguments about why we should say one thing or another.
Later that evening, a final draft report for discussion the next day was circulated. I was of the view that the Ministerial Code conclusions were weak. Clerks clearly felt reluctant to go too far in their suggested text as this was undoubtedly the most politically sensitive part of the report’s conclusions.
And so I began drafting some conclusions on the Ministerial Code together with some wider reflections. I sent these to the Clerk at 22:14 that evening and they were circulated the next morning to Committee members at 08:12.
THURSDAY 18 MARCH 2021
On 18 March 2021, the Committee met for the last time to debate and agree its Report. It met from 09:00 – 12:16, 13:38 – 14:30 and 18:29 – 19:35. All meetings were held virtually.
My proposed text came up for discussion shortly after 14:00 and was the subject of some heated debate, with SNP members very unhappy with the draft but having proposed no alternative texts of their own. I offered to take the text away and redraft it to take account of views that had been expressed. I sent a final draft with some modest amendments to the Clerks and it was circulated to MSPs at 16:31.
We reconvened again at 18:29. We had the Ministerial Code, Overall Conclusions and Wider Reflections texts still to agree. At around 18:45, I formally moved that we agree the text of the proposed conclusions to the Ministerial Code section (these ended up as paragraphs 717-721 in the Final Report). They were agreed by division.
Thirteen minutes later, at 18:58, James Matthews dropped his bombshell and reported the conclusions of the Ministerial Code section on twitter and on Sky News. The Committee was still meeting and the report was not due to be published until the following Tuesday. There was a fair degree of astonishment and anger. Stuart McMillan walked out of the virtual meeting.
This was not the only occasion when confidential material had ended up in the public domain. The weekend after the Sky News leak, confidential evidence from the two complainers, Ms A and Ms B, from whom the Committee had taken evidence earlier in the week on 15 March, appeared in the media. Members had been explicitly advised of the sensitive nature of the evidence we heard, of the potential for contempt of court and of the risks of breaching the agreement entered into between the Parliament and the complainers in relation to how their evidence would be heard and reported. Nevertheless, confidential material containing salacious detail ended up being briefed to The Sunday Times and printed on 21 March 2021.
In January and February 2021, the Committee was engaged in a protracted dispute with Mr Salmond about the publication of his evidence and arrangements for giving oral evidence. Mr Salmond’s legal representatives, Levy and McRae, chose to send various emails and evidence directly to Committee members rather than, as advised, directly to the Clerk of the Committee.
At 15:32 on the afternoon of 22 February 2021, David McKie of Levy and McRae, wrote to the Committee to report that his client (Mr Salmond) had just been approached by media representatives who advised him that the First Minister had organised a media interview at 4 p.m. to “rebut our client’s latest submissions to the Committee.” These submissions had been sent to the Committee on 17 February but were not published until after 19:00 on 22 February. Whether the First Minister’s media interview was in fact in response to Mr Salmond’s latest submissions or alternatively in response to the briefings that Mr Salmond’s team had themselves been providing to the media, I cannot say. But if it was the former, and she had sight of his written submissions, then clearly someone had leaked them.
The sources of leaks are seldom found. I still do not know how some of the Committee’s conclusions ended up being broadcast by Sky News ten minutes after we agreed them. But I can say something about the likely culprits.
Leaks typically occur when the person leaking considers that either they have something to gain from the leak or that it is in the public interest for information to be publicised. People do not leak confidential documents on a whim. It is a risky venture and tends only to be done when the stakes are high and when there is a clear rationale for doing so.
First of all it is important to note that James Matthews must had had the draft conclusions well before 18:58. It is inconceivable that whoever leaked them did so at 18:45, that James Matthews managed to assure himself of the authenticity of the documents and organise an outside broadcast live on TV all within 13 minutes. As we will see, I think there was contact with Mr. Matthews in that time window but it was not the first contact that had been made.
The first draft conclusions on the topic of breaching the Ministerial Code were circulated to the Committee at 08:12 on Thursday. The draft conclusions that James Matthews reported were circulated at 16:31. We voted on them at 18:45 and they were then revealed on Sky News at 18:58. Whoever leaked them must have provided them to James Matthews well before 18:45.
It is worth noting as well that the meetings held on the Thursday were all virtual. Anyone could have been present with any of the MSPs hearing the Committee’s deliberations.
So who leaked the document?
As I argued at the outset, I am quite certain that none of the MSPs on the Committee leaked it directly to James Matthews. This would have been highly risky and without any evident purpose. The report would be published the following Tuesday after the verdict from James Hamilton and two days before Parliament went into recess for the May election. The report would, in presentational terms, be the last word.
To the extent that any opposition party MSP considered that there was any political advantage to them from the conclusions, they just had to wait just over four days. In any event, if they thought that the press should see them before Tuesday, they would, given the sensitivity of the leak, consult their own media teams and leaders. Even then, if there was any partisan gain to be had, the Sunday newspapers were the obvious channel for any such leak. There was one party for whom there was an evident benefit in leaking the conclusions, however.
Whilst not at first appearing to be of benefit to the First Minister, the leaking of the conclusions could be used by the First Minister’s political operatives as the precursor to the fury and condemnation directed at the Committee and effectively neuter the impact of the final report when it landed on Tuesday. It was a high risk strategy but there was little to lose. The Committee’s recommendations would have to be dealt with one way or another on the following Tuesday. James Hamilton’s report was due on Monday.
There was a channel of communication from the Committee that had been revealing confidential material for some months. I spoke to two political journalists, both of whom claimed that they received briefings from Scottish Government Special Advisers (SPADs) at various points during the inquiry. Much of the content of these briefings was spin on oral and written evidence that was in the public domain, but on a number of occasions it concerned details about process and evidence that was not in the public domain. Such information had to have come from the Committee, but neither myself, nor Liberal Democrat, Labour or Conservative MSPs were in the habit of briefing SPADs.
All of which leads me to conclude that it was the SNP which stood to benefit from the leak, as it provided an excuse to trash the Committee, its opposition members and, by extension its report and conclusions.
SO WHAT HAPPENED?
Here’s my best assessment.
The briefing provided to journalists by SPADs came from information supplied to them by an SNP member of the Committee. At some point on Thursday after 08:12 when the first draft was circulated, a SPAD was provided with the draft conclusions. They were perhaps emailed or perhaps the SPAD was present with the member at what was a virtual meeting.
Either way, the Government needed to know as soon as possible what was going to hit them on Tuesday and the job of the SNP member was to provide advance warning of what was to come.
During Thursday, a plan was devised that, for reasons of plausible deniability, was never shared beyond a very small circle of advisers and certainly not with the First Minister, who could not be seen to be part of the operation and who needed to be able to react with genuine surprise and fury at the leak.
Advisers got hold of the early 08:12 draft and decided that it should be leaked. This would not be the first time that James Matthews had been given stories by sources close to the First Minister that were damaging to Mr. Salmond. James Matthews was offered the exclusive. But SPADs and Mr. Matthews had to wait until the Committee had voted on the the text. After 16:00, it would be clear that the Committee was going to divide on the text and that it would pass by a majority. James Matthews got organised and ready to go on air at a moment’s notice. Shortly after 18:45, when the vote took place, he was given the all-clear to broadcast the text.
After James Matthews had dropped his bombshell, the journalist, who was known for his assertive interviewing style, waited for Nicola Sturgeon at her home. This is unusual. Journalists by convention do not doorstep the First Minister at her home unless there is a major news story breaking involving her – which there was. James Matthews was the only journalist there. Was he there on his own initiative or had he been tipped off?
The First Minister accused me and other MSPs of being partisan and having made up our minds before hearing her evidence.
This was followed the next day by Alasdair Allan, Maureen Watt and Stuart McMillan, with their faux outrage and accusations, trashing the committee’s reputation. Social media was awash with condemnation of myself and my opposition colleagues. The narrative was established that we were partisan and had debased Parliament by leaking sensitive information.
The First Minister’s spokesperson released a statement questioning the integrity of the Committee’s members (presumably excluding the SNP members, though at this stage that hardly needed saying), accusing us of “baseless assertion, supposition and smear”. The irony of this last accusation was clearly been lost on whoever wrote the statement.
Spin doctors held private briefings with journalists to try to undermine my personal integrity in particular.
Meanwhile, I responded to over a dozen queries from journalists about the authenticity of the leak, by saying that I was barred from commenting until the report was published.
How naive of me.
To cap it all, the leak of Ms A’s and Ms B’s evidence on the Sunday amplified this narrative a hundred-fold, with further accusations of bad faith and betrayal by us.
The plan was a success. The reputation of myself and my opposition colleagues was in the gutter. Un-evidenced claims that one of us had been the source of the leak became alleged established fact.
The Committee’s reputation was in tatters and its conclusions derided.
We still do not know who was responsible for this leak. But it is notable that the Ethical Standards Commissioner wanted to interview political parties but for, following legal advice, concluded that he couldn’t..
I have said nothing about the leak of Ms A’s and Ms B’s evidence, but cui bono?
Finally, the MSP Code of Conduct is not fit for purpose. It is now abundantly clear that any MSP can, for malign motives, leak Committee reports and, indeed, any other confidential information.
They can then conduct a systematic demolition job on the Committee’s conclusions, since the rules on confidentiality no longer apply.
Meanwhile mugs like me follow the spirit of the rules and make no comment. I shall be writing to the Presiding Officer on the matter.
Thanks for reading.
Statement by Alasdair Allan, Maureen Watt and Stuart McMillan
STATEMENT FROM MSP [sic] MEMBERS OF SGHHC COMMITTEE
“This Committee was meant to carry out a dispassionate search for the truth.
But, at the very last minute, without full consideration of the evidence, the opposition railroaded through their prejudged assertions based purely on political considerations.
On the question of the First Minister offering to intervene, there are two sides of the story and we have evidence from both sides, but opposition MSPs chose not to reflect that by selectively referencing only the evidence which supported their preconceived narrative.
We have also heard clear, consistent evidence that the First Minister had no knowledge of concerns of inappropriate sexual behaviour by Alex Salmond before November 2017.
Yet, without a shred of evidence to the contrary, the opposition simply used their majority on the committee to insert 11th-hour predetermined political assertions that have no basis in fact. That is simply disgraceful and wrong.
For the opposition, this was never about the truth. It was never about the evidence and, shamefully, it was never even about the women. All of these are being sacrificed in pursuit of political ends.
This is the politics of desperation by the opposition members.”
We the above Members release this joint statement to address issues raised by the leaking of information – in blatant contravention of the MSP code – relating to the unfinished and unpublished report from the Committee on the Scottish Government Handling of Harassment Complaints.
We have previously refused to give a running commentary on the Committee’s work but media speculation has compelled us to comment solely on accounts recently placed in the public domain and we will not comment further until the full report is published.