scottish parliament · 2020. 2. 11. · c/o levy and mcrae, pacific house, 70 wellington street,...

Alexander Salmond - Annex Page 55 of 147

UNTO THE RIGHT HONOURABLE THE LORDS OF COUNCIL AND SESSION

STATEMENT OF ISSUES

in the cause

ALEX SALMOND c/o Levy and Macrae, Pacific House, 70 Wellington Street, Glasgow G2 6UA

For

Judicial Review of

A purported decision of LESLIE EVANS, Permanent Secretary of the Scottish Government (the first respondent) dated 21st August 2018 under and in terms of A

Procedure For Handling Complaints Involving Current or Former Ministers

Section 27A of the Court of Session Act 1988 (the 1988 Act)

1. Whether the parts of the petitioner’s case listed (a) to (e) in Answer 2 are time-barred by operation of section 27A of the 1988 Act.

2. Whether, in respect of any or all of those parts of the petitioner’s case which are otherwise time-barred, the court should exercise its equitable discretion under section 27A(1)(b) to extend the period in which the petition can be brought to 24 August 2018.

Ultra Vires and Error of Law

3. Whether the application of the Procedure to the complaints against the petitioner was solely a means for the respondents to discharge a duty of care to their staff.

4. Whether, as the petitioner contends:- a) it was a quasi-judicial proceeding in which the first respondent

purported to assert jurisdiction over him, b) the decision resulted in the imposition of sanctions on him, c) the decision infringed his right to reputation and his rights under Article

8 of the ECHR.

5. Whether, in all the circumstances, the first respondent had a legal right to make the decision complained of.


Retrospectivity

6. Whether, as a matter of interpretation, the Procedure applies to the conduct of Former Ministers in the Scottish Government in relation to conduct which is alleged to have occurred before the Procedure came into effect.

7. Whether, as a matter of law, the Procedure can be invoked in the circumstances set out in 7 above.

8. When, as a matter of fact, the complaints were initiated by the two complainers under and in terms of paragraph 1 of the Procedure.

9. When, as a matter of fact, the Procedure was brought into effect.

Procedural Unfairness

10. Whether, and if so to what extent, the common law rules of procedural fairness were infringed by any of the following features of the procedure giving rise to the decision:-

a) The non-disclosure to the petitioner of the Investigating Officer’s (IO’s) reports,

b) The provision to the complainers of the parts of those reports which concerned their respective complaints

c) The non-disclosure to the petitioner of witness statements, d) Restrictions imposed on the petitioner’s access to documentary evidence

in the hands of the respondents, e) Restrictions imposed on the petitioner’s access to staff employed by the

second respondents, f) Restricting the petitioner’s right to present his case by limiting him to a

response channelled through the IO in terms of paragraph 11 of the Procedure,

11. Whether the rules of procedural fairness were complied with by giving the petitioner the “gist” of the complaints and an opportunity to respond to them.

12. Whether the IO’s purported role in presentation and presentation of the petitioner’s case involved a conflict of interest in respect that she prepared and presented evidence in support of the allegations including comment on the credibility and reliability of the complainers.

13. Whether the manner in which the first respondent reached her decision denied the petitioner a fair hearing in respect that:-

a) It involved a factual determination that the conduct complained of did occur and did constitute harassment,

b) That determination was made as a paper exercise in circumstances where the first respondent knew that the petitioner’s had not seen the IO reports or the witness statements, had only offered a limited response


Privacy, Confidentiality and Data Protection

22. Whether, if the decision is unlawful on any of the substantive grounds advanced in the petition, the recording of it in the records of the second respondent or the communication or publication of it and of any of the material which was relied on by the first respondent in reaching the decision constitutes or would constitute a violation of the petitioner’s:-

a) Rights of privacy, and to reputation at common law, b) Rights under Article 8 of ECHR, c) data protection rights.

23. Whether in any circumstances the recording of the decision in the records of the second respondent is a violation of the petitioner’s rights under the Data Protection Act 2108 in respect that:-

a) that recording has no lawful purpose, b) is without the petitioner’s consent, c) is not necessary, d) and was made in circumstances which fail to comply with the

requirements of lawful, fair and transparent processing.


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UNTO THE RIGHT HONOURABLE THE LORDS OF COUNCIL AND SESSION

NOTE OF ARGUMENT FOR THE PETITIONER

in the cause

ALEX SALMOND c/o Levy and McRae, Pacific House, 70 Wellington Street, Glasgow G2 6UA

For

Judicial Review of

A purported decision of LESLIE EVANS, Permanent Secretary of the Scottish Government (the first respondent) dated 21st August 2018

The Court of Session Act 1988 Section 27A

1. The respondents’ first plea in law should be repelled because the date on which the

grounds giving rise to this petition first arose was 21 August 2018.

1) That was the date on which the decision complained of was taken. The decision gave

rise to the grounds on which this petition proceeds. Section 27A does not use the

word “decision” because there are other juristic events which can give rise to a valid

application for judicial review. For examples see – Fordham, Judicial Review

Handbook section 5.2 “Spectrum of Possible Targets” pp58-61.

2) There was no incompetent or unlawful decision adversely affecting the petitioner’s

rights until that decision was taken – R (Burkett) v Hammersmith and Fulham LBC

[2002] 1 WLR 1593 Lord Steyn at paragraph 42.

3) The respondents contend that some of the individual grounds of judicial review

arose on different days from others. That position is misconceived. It is in conflict

with the principles of simplicity and certainty which are important in the

interpretation of statutory provisions on procedural matters – R (Burkett) supra Lord


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Steyn at [46]. Their approach is complex and uncertain because it seeks to attribute

different starting points for the 3 month limitation period to different grounds of JR

and indeed for different sub-divisions of the same ground.

2. Alternatively, if all or part of the petitioner’s application is outwith the three month

limitation period then the court should exercise the power conferred in section

27A(1)(b) of the 1988 Act by extending the period during which this application is

allowed to proceed to 24 August 2018. The equitable considerations which favour the

exercise of that discretionary power are:-

1) The petitioner had valid reasons not to make an application to the supervisory

jurisdiction unless and until the first respondent purported to make a decision to the

effect that the allegations against him are well founded. An application to the

supervisory jurisdiction prior to the date of the decision (21 August 2018) would

have resulted in court proceedings which would have compromised the conditions of

strict confidentiality under which the procedure giving rise to the decision was being

applied. Those proceedings would have attracted widespread publicity containing a

great deal of speculation about the nature and content of the complaints against the

petitioner, the identities of the complainers and the validity of the complaints.

2) An application prior to the date of the decision would have been vulnerable to a

challenge that it was premature.

3) The application was made 2 days after the decision was taken.

4) The respondents have suffered no prejudice arising from the date on which this

application was made.

5) The petitioner would suffer great detriment if the petition is not allowed to proceed.


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In correspondence (productions 6/7 to 6/22) the petitioner informed the first

respondent of his intention to bring a Judicial Review in the event that she upheld

the complaints against him applying the procedure which had been invoked.

6) Refusing permission for the application to proceed would not be in the interests of

good administration.

7) The violations of the petitioner’s rights to have the complaints against him dealt with

in accordance with the rules of procedural fairness and the requirements of Article 6

of the ECHR continued right up to the date of the decision.

8) The petitioner made reasonable attempts to resolve the complaints against him by

mediation and arbitration.

Ultra Vires and Error of Law (Paragraphs 12 and 13 of the Petition)

3. The application of the Procedure to the complaints against the petitioner was ultra vires

the powers of the first respondent. She had no lawful basis for making a formal

determination that he had been guilty of serious misconduct.

1) The starting point is the petitioner’s status as a private individual when the

Procedure was brought into effect in about December 2017 and when it was applied

to the complaints against him.

2) There is no legal basis in statute law, in contract or otherwise for dealing with formal

complaints against him using the Procedure.

3) The respondents contend that the Procedure is simply a means of discharging their

duty to protect their staff (Answers paragraph 12). The reality is that it reaches far

beyond that legitimate objective. The decision adversely affects the petitioner’s right


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to reputation and his right to privacy at common law and under Article 8 of the ECHR

– Gatley on Libel and Slander 12 edition paragraphs 1.11 to 1.14 and 22.1 to 22.5

4) A formal decision upholding a complaint is a weighty sanction in its own right

particularly where it bears to be the outcome of a procedure which is supposed

to involve “an impartial collection of facts” by an impartial Investigating Officer

(paragraph 10) and a quasi–judicial determination by the first respondent – see

the decision report (document 1), particularly “Part 4: Considerations on

reaching a decision” (pp9 to 11).

5) The Procedure can, and this case did, result in the imposition of sanctions

beyond simply the formal finding of misconduct. These are imposed by or arise

as a direct or indirect result of a decision by the first respondent. Reference is

made to paragraphs 11 and 12 of the Procedure and to the “Sexual Harassment

Routemap” appended to production 7/8 of process.

6) The presence of the recorded decision in the second respondent’s records will

work to the disadvantage of the petitioner in respect that it can and will be seen

there by any person who consults that record or who is informed of its content.

Disadvantage of that kind is a relevant factor in characterising decisions of this

kind– R v Norfolk County Council [1989] QB 619 at pp627E to 628H.

7) The respondents cannot guarantee the confidentiality of the decision or their

record of it. That confidentiality was breached the day after the decision was

taken – see productions 6/36, 6/38, 6/45 and 6/47.

8) Contrary to the respondents contention in paragraph 12 of the answers a former

minister is bound by the provisions of the Procedure when a formal complaint is


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lodged against him or her. Reference is made to paragraphs 11, 12 and 15 to 17

of the Procedure (document 3 in the schedule pp29 and 30).

Retrospectivity

4. The Proceedings against the petitioner are incompetent in respect that the complaints

are of alleged misconduct which occurred long before the Procedure was written or

came into effect and long after the petitioner ceased to be a minister.

1) The Procedure does not bear to have retrospective effect and does not have that

effect. At the time the alleged misconduct occurred complaints of this kind were

dealt with using a different procedure called “Fairness at Work Policy and

Procedures” (“Fairness at Work”) – production 6/28. Fairness at Work does not

purport to apply to the conduct of former ministers.

2) The so called presumption against retrospective effect in statutory interpretation is

relevant here – see Craies on Legislation paragraphs 10.3.18 and 19.

3) The Procedure falls foul of the presumption in respect that: it purports to extend the

application of the Procedure to former ministers thereby exposing them to the

possibility of sanctions which they did not face under the previous procedure after

they left office; it imposes procedural constraints which did not exist under the

previous procedure and which impair the ability of the person complained against to

contest allegations of misconduct - Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC

553 Lord Brightman at pp558 and 563. Reference is made to production 6/28

paragraph 6.5.5.

5. The respondents accept that the Procedure can only be applied in cases where the

complaint is made after the Procedure came into effect – paragraph 14 of the


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Answers. The respondents have not disclosed the dates on which the complaints

were first made or the date on which the procedure came into effect.

Procedural Unfairness

6. The respondents do not dispute that the common law rules of procedural fairness

were engaged when the Procedure was invoked in this case. Their position is that the

rules were complied with by giving the petitioner the details of the allegations

(paragraphs 17 and 20 of the Answers) described by them as “the “gist” of the

complaints and the ability to respond thereto” – paragraph 21. The rules of procedural

fairness are engaged because the decision affects the rights and interests of the

petitioner – R v The Army Board ex p. Anderson [1992] QB 169 Taylor LJ pp184 and

185.

7. On the question of whether a decision is vitiated by a failure to apply the rules of

procedural fairness (treating that label as interchangeable with the term “natural

justice”) the correct approach is to determine whether procedural defects in the

proceedings taken individually or cumulatively rendered the proceedings as a whole

unfair – Auburn, Moffett and Sharland, Judicial Review Principles and Procedure

paragraph 5.28.. This is a question of law – Auburn et al. paragraph 5.29.

8. Having regard to: (1) the nature of the decision which involved the determination of

disputed facts and a decision on whether the facts substantiated complaints of

harassment (paragraph 11 of the Procedure); (2) the impact of the decision on the

petitioner’s rights and interests (paragraph 3 above); (3) the subject matter of the

decision, namely serious misconduct, the rules of procedural fairness required the

disclosure of all the evidential material available to the first respondent and not just a


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gist – ex p. Anderson above pp 187 to 189 and Auburn et al. above paragraph 5.27 and

the cases cited there. The petitioner could not respond to the allegations without sight of

the evidential material relied on in support of them.

9. It is the cumulative effect of the matters complained of by the petitioner which justifies

his contention that the decision was reached in contravention of those rules. Some of the

individual procedural defects meet the test in their own right.

The Investigating Officer (“IO”) Reports (petition paragraphs 9 and 17)

10. The non-disclosure of the IO reports was a violation of the principles of procedural

fairness. These are a key part of the procedure – see Rules 10 and 11 (document 3 in

the schedule p37). The IO prepared and submitted 3 reports to the first respondent at

different stages of the procedure for different purposes – decision report paragraphs 6,

17 and 20 (document 2 in the schedule pp6 and 7). None of these were shown to the

petitioner. They were seen by the complainers.

11. This severely hampered his ability to answer the complaints in the following respects:-

1) He did not know the content of the complainers’ evidence,

2) He did not know how that evidence was being presented and the extent to which it

was being relied on by the IO,

3) He did not know which witnesses were making or supporting the allegations.

4) He was unable to determine what evidence he would require to offer or which

witnesses he would require to put forward in order to counter the allegations.

5) He did not know what was being offered by the IO as analysis of or commentary

on the evidence or arguments/submissions in support of the allegations. The

petitioner could not counter these.


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6) He had no sight of the IO’s response to his limited representations (the last

report) and could not therefore counter any further evidence relied on by the IO

or any further discussion of the evidence contained in this final report.

12. The IO’s reports clearly had a decisive influence on the first respondent’s decisions. The

IO reported that the two complainers were “credible and candid witnesses” – Decision

Report paragraphs 36 and 79 (pp 12 and 20). The Decision Report contains specific

references to the IO’s reports at paragraphs 25, 36, 44, 52, 55, 59, 79, 80, 85, 91, 97,

and 102.

13. The withholding of these reports was, for these reasons, grossly unfair. It was a

violation of the principle that a person facing allegations of this kind has the right to

prepare their own case and to answer the case they have to meet – see De Smith’s

Judicial Review 8th Edition paragraph 7-044 and authorities cited at f.n. 211 including In

Re D. (Minors) (Adoption Reports: Confidentiality [1996] AC 593 Lord Mustill at pp603

and 604.

Non-Disclosure of Witness Statements

14. The non-disclosure of witness statements was a violation of the principles of procedural

fairness. These statements played a key role in the first respondent’s decision – see the

decision report paragraph 25 document 2 (p9) and paragraph 17 below.

15. As a result of this the petitioner was severely hampered in his ability to answer the

complaints in the ways described in paragraph 10 above. Focusing on the non-

disclosure of these statements the petitioner was:-

1) Unable to submit a full statement of his own responding to the detail of the evidence

relied on in support of the allegations,


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2) Unable to offer evidence commenting on the credibility and reliability of the

evidence relied on in support of the allegations,

3) Unable to procure witness statements from his own witnesses supporting his

position or countering the detail of the evidence relied on in support of the

allegations or offering evidence on credibility and reliability issues,

4) Unable to suggest lines of enquiry (witnesses and documents) to the IO,

5) Prevented from making representations to the first respondent about the content or

quality of the evidence gathered by the IO or its relevance to the merits of the

complaints.

16. The unfairness was exacerbated by the fact that there was no hearing at which the

evidence relied on by the IO could be tested in cross-examination and no opportunity

for the petitioner to challenge the IO’s assessment of the evidence.

17. The petitioner was at a serious disadvantage relative to the complainers because they

were given copies of the IO reports containing passages from the statements. The

witness statements collected by the IO from the complainers and from an unknown

number of other witnesses whose identities were not disclosed to the petitioner clearly

had a decisive influence on the outcome. Reference is made to paragraphs 25, 26, 29,

37, 39, 42, 44, 46, 47, 52-54, 59, 61-63, 65, 67, 73-75, 77, 80-82, 85, 87, 91-94, 97, 98,

100, 102-104, 107-109.

18. The non-disclosure of these statements was, for these reasons, grossly unfair. It was a

violation of the principle that a person facing allegations of this kind has the right to

prepare their own case and to answer the case they have to meet – see De Smith supra

at paragraphs 7-060 and R (on the application of O’Leary) v The Chief Constable of

Merseyside [2001] EWHC Admin 57 at [16].


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19. In the context of the proceedings against the petitioner, which involved the prospect of

a finding against him of serious misconduct, the failure to disclose the witness

statements and/or the IO reports was unlawful – De Smith paragraph 7-061 and Kanda

v Malaya [1962] AC 322 at pp335-338.

20. The respondents contend “that it was sufficient that the Petitioner be given the “gist” of

the complaints and the ability to respond thereto: ex p Doody [1994] 1 AC 531” –

Answers paragraph 21. The gist in this context means no more than the content of the

allegations set out as “Causes for Concern” in Annex B of the first respondent’s letter of

7 March 2018 - document 3 (pp39 to 40). This is not a gist of the evidence. For the

detailed reasons given in paragraphs 9 to 17 above that contention is untenable

Access to Evidence

21. The first respondent prevented the petitioner from contacting Scottish Government

staff as potential witnesses and from obtaining access to Scottish Government

documentation. Also, the petitioner was not allowed to share the complainer’s personal

data with anyone apart from his legal team. This prevented him from disclosing the

allegations to prospective witnesses.

The Role of the Investigating Officer (“The IO”)

22. Rule 11 of the Procedure also prevented the petitioner from presenting his own

response to the allegations by denying him the right to choose his own witnesses and to

present his own evidence contrary to the principle referred to in paragraph 12 above.

23. It was manifestly unfair to require the petitioner to prepare and present his case

through the offices of the IO for the following reasons. First, the petitioner did not know


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what the evidence against him was. Second, the petitioner had no control over which of

his suggested lines of enquiry the IO would follow or how she would do this if she chose

to. Third, the petitioner would not have seen the outcome of the work carried out by

the IO in this regard

24. Also, the Procedure created conflicts of interest for the IO. A conflict arose between the

role she was directed to perform in relation to the petitioner’s case and her role in

preparing and presenting evidence in support of the allegations.

The Role of the First Respondent

25. The manner in which the first respondent reached her decision denied the petitioner a

fair hearing in contravention of the principles of procedural fairness. In this case it is

apparent that the first respondent has assumed the role of fact finder. Reference is

made to paragraphs 24 to 26 of the decision report.

1) The first respondent decided that on each of the causes for concern the complainers

were credible and that the incidents described by them did occur. Reference is made

to the decision report paragraphs 41, 49, 56, 69, 83, 89, 95, 100 and 110.

2) Furthermore, the first respondent purported to carry out the exercise of weighing

the evidence in the knowledge that the petitioner did not and could not know what

evidence was being put forward or considered as supportive of the complainers’

allegations. She knew that he was unaware of the IO’s assessment of the evidence as

set out in her reports.

3) She knew that the petitioner had no opportunity to challenge the complainers’

evidence or the evidence of any other witness in cross-examination.

In all these circumstances the petitioner was denied a fair hearing.


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26. Separately the decision was irrational and unreasonable for the same reasons.

Inequality of Arms

27. Both the complainers were given copies of the IO’s reports in accordance with

paragraph 10 of the Procedure. This is another example of procedural unfairness.

Effects of Procedural Fairness

28. Where the process, taken as a whole, is unfair it is not necessary for the petitioner to

show that any particular feature of the proceedings caused the result to be unfair –

Kanda above, Lord Denning at p337 followed in several later cases, see Fordham above

paragraph 60.1.4 p622.

1) However, the decision report does reveal the very considerable extent to which the

undisclosed IO reports and witness statements influenced the decision – see

paragraphs 11 and 17 above.

2) Paragraph 23 of the petition gives some examples of how other prejudicial effects

of procedural unfairness can be identified from the information which has been

given to the petitioner before and after the decision was taken.

Article 6 of the ECHR

29. The decision is a determination of the civil rights of the petitioner under reference to

Article 6 ECHR - Regner v. The Czech Republic (2018) 66 E.H.R.R. 9 at para 99-112.

Specifically, it is a determination of his right to reputation under the common law and

Article 8 ECHR - Pocius v. Lithuania (Application no. 35601/04, 6 July 2010) at paras 38-

46. It is also a determination of his obligations, including delictual obligations to the

complainers. It is unlawful for the first respondent to act in a way which is incompatible


scottish parliament · 2020. 2. 11. · c/o levy and mcrae, pacific house, 70 wellington street,...

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