Pictures by Bill Heaney
JACKIE BAILLIE ASKS: WHY DIDN’T YOU GO TO THE POLICE, NICOLA?
Jackie Baillie: Good morning, First Minister. I just note, though, that the procedure that you discussed with some of my colleagues has not actually been used since it was last used in relation to Alex Salmond. Essentially, it has been lying on the shelf gathering dust, so we have concerns that the procedure itself is not robust enough, given that it is not being used.
I will explore with you the confidentiality of complainants, which is something that I think that you and I will both care about. I start with the issue that I, along with Willie Rennie, raised with you at First Minister’s question time last week. There was a series of meetings prior to the meeting on 29 March between yourself, Geoff Aberdein—Alex Salmond’s former chief of staff—and a senior member of your team. At one of those early meetings, the complaints against Alex Salmond were revealed to Geoff Aberdein. Who authorised the senior member of your team to have that meeting? Was it you, was it the permanent secretary, or were they simply freelancing?
The First Minister: First, before I go on to that, I say for the record that I was not claiming that the procedure has been used for complaints other than in Alex Salmond’s case. That does not change the fact that the procedure is still extant and has not been declared unlawful.
Convener, I want to answer the question as fully as I can, but, like the committee, I am under legal constraints as to what I can say.
I would not accept Jackie Baillie’s characterisation of the meeting. I was certainly not at the meeting that has been described—I should also say that neither were the people who are seeking to attest to the content of that meeting. However, I would say that, as I understand it, James Hamilton, who is conducting the independent investigation under the ministerial code, has evidence from the people who were at the meeting.
I was not at the meeting; therefore, I cannot give a direct account of it.
However, I can say that the account that I have been given has given me assurance that what is alleged to have happened at that meeting did not happen in the way that has been described. As I understand it, James Hamilton has the accounts of those who were at the meeting. The person who has been described as a senior Government official is willing and has offered to give private evidence to the committee on this matter. It is for the committee to decide whether it wants to take up that offer. To describe it as a meeting that was authorised or happened in the way that Jackie Baillie is suggesting is not something that I would accept. Unfortunately, the constraints that I am under mean that it is not possible for me to go much further than that.
I do not want to stray into territory that we will come on to later, but in relation to the identity of complainants, I can speak to the discussion that I had with Alex Salmond on 2 April 2018. On Friday, he seemed very certain that a complainant had been named by someone in Government in a meeting that he was not at, but he seemed less sure whether a complainant had been named at a meeting that he was at.
Alex Salmond was open with me about the identity of one complainant. He had not been told about it and there was no suggestion that I can recall that anybody in the Government had told him. He knew the identity of one complainant because he knew about the incident, because he had apologised to the person concerned. I cannot recall whether the name of the other complainant was shared openly on 2 April in the way that the one I have just spoken about was.
However, Alex Salmond also knew the identity of that complainant. I remember him talking about how he had gone through the Scottish Government Flickr account to find out who had been with him on particular days. The point that I am making is that I do not recall any suggestion from Alex Salmond on 2 April that he had been told about the name of a complainant in the way that is being suggested. However, I know that he knew the identity of both complainants, in one respect because he knew about the incident, and in the other respect through his own investigations.
Jackie Baillie: Thank you, First Minister. I will come on to explore that in a minute. I take you back to my question, which was on the point at which complaints against Alex Salmond were revealed to Geoff Aberdein. Did you know that the meeting was taking place?
The First Minister: Not to the best of my recollection. Let me be clear: back then, somebody in my team meeting Geoff Aberdein would not have been particularly newsworthy. Geoff Aberdein is a friend of most of us and a former colleague. I do not recall that being the case.
Jackie Baillie: I agree that it would not be newsworthy.
The First Minister: I was not a party to the discussion, but based on what I have been told about it, I do not accept Jackie Baillie’s characterisation of it.
Jackie Baillie: You might not accept my characterisation of it, but Geoff Aberdein’s conversation with Kevin Pringle and Duncan Hamilton QC is confirmed in written evidence to the committee. Are you saying that they are not telling the truth? Are you saying that Geoff Aberdein is not telling the truth?
The First Minister: I am not casting aspersions on the veracity of anyone else—that is not what I am here to do. However, Kevin and Duncan were also not at the discussion.
Jackie Baillie: Correct. They are corroborating something that Geoff Aberdein said. Is Geoff Aberdein’s recollection incorrect?
The First Minister: I do not know because I do not know directly what Geoff Aberdein is saying about it. I know that James Hamilton QC has the accounts of the people who were at that meeting and will able to consider the matter properly.
It is not for me to tell the committee how to do its work, obviously, but I listened to the Lord Advocate say yesterday that although there are certain things that the committee cannot publish, it is not prevented from considering them. As I said, I understand that the committee has had evidence that denies that allegation and that there has also been an offer to give evidence in private.
Jackie Baillie: I move on to the name of the complainer being revealed to Mr Aberdein and him communicating it to Mr Salmond. I am sure that you will agree that that is an extraordinary breach of confidentiality and, in any other employment, would be a sackable offence. Who authorised the senior member of your team to reveal the name of one of the complainants to Geoff Aberdein? Was it you, was it the permanent secretary or were they freelancing?
The First Minister: I am not accepting that that happened, so I am clearly not accepting that it was authorised in the way that Jackie Baillie suggests. I accept that that is a matter of contention. Unfortunately, there are legal constraints on what we can discuss publicly at this committee, but James Hamilton is not under such a constraint in his consideration. I am not going to sit here and just accept the premise of questions that are being to put to me where I dispute that premise.
I do not know for certain, but what I say is based on what I have said about Alex Salmond’s knowledge of the identity of complainants and the basis for that knowledge when he spoke to me on 2 April 2018. I did note that Duncan Hamilton, in his written submission yesterday, said something along the lines of, “This was communicated” in the days after Alex Salmond had had his letter from the Government.
Certainly, Alex Salmond was pretty clear that he had found out, through investigations of Scottish Government social media accounts, who one of the complainants was. In relation to the other one—this is the bit on which I am perhaps just speculating—that must have been when he got that letter. He knew about the incident, because he had apologised to the person concerned. My assumption would therefore be that he would have known about that complainant without anyone having to tell him. I know, from what he told me, that he found out the identity of the other one through his own investigations.
Jackie Baillie: First Minister, you have worked with Kevin Pringle and would count him as a friend. He is saying that he heard that information. You have worked with Duncan Hamilton, who is a QC. He is attesting to the same information about a complainer’s name being revealed by a senior member of your team. Leaving aside that they were not in the room, you trust what they say to you—and you have done in the past. Are you saying that Geoff Aberdein, who was in the room and whom you describe as a friend, is lying about that?
James Hamilton QC, the Irish lawyer who is conducting the inquiry that really matters.
The First Minister: I am not here to make that accusation of anybody. I am saying that Kevin and Duncan were not part of that discussion, and I was not part of it. Of the two people who were part of it, I have heard accounts of Geoff’s version—I have not heard that directly from him—and the other party has a different account. It is up to the committee to decide whether it can hear, in private, directly from those people and, of course, James Hamilton has their accounts. There is a clear difference here.
The point that I am making is that, because of the reasons that I have set out, in relation to one complainant, where Alex Salmond knew about the incident because he had apologised to her, the knowledge of the identity of that complainant may well have been known. My assumption is that it would have been known to Alex Salmond at that time, for those reasons. However, I know that that particular version of the discussion—to which I was not party—is not accepted by the other person who was in it.
Jackie Baillie: In response to me and Willie Rennie at First Minister’s question time last week, you said that you had no knowledge of that at all. At what point did you speak to your senior official about it?
The First Minister: When there was a suggestion made about it. I cannot remember the exact date, but I can check that for you if you want.
Jackie Baillie: So, it predated First Minister’s question time.
The First Minister: I think that you can take it as read that when I said that, to the best of my knowledge—. Let me reiterate that I was not at that discussion, so I am not capable—
Jackie Baillie: No—but you have spoken to the senior official.
The First Minister: I do not believe, based on what I have been told, that that account is accurate. However, that is based on my not actually being party to the discussion. As I have said, the committee could, I am sure, speak privately to the other individuals concerned even if it cannot do so publicly.
Jackie Baillie: I want to be clear about this. You spoke to the senior official before First Minister’s question time last week and therefore the answer that you gave both to me and to Willie Rennie was not necessarily strictly accurate.
The First Minister: Sorry—I do not follow.
Jackie Baillie: Okay. It is really simple. We asked you about your knowledge of the issue, and you said that absolutely nothing happened with revealing the name of the complainer and that that was outwith your knowledge. That is clearly not the case if you spoke to an official in advance of our questioning last week.
The First Minister: I would have to go back and check the Official Report. To the best of my knowledge, what was being alleged did not happen. That is what I was seeking to convey.
Jackie Baillie: I am sure that we will all check the Official Report. In your discussion with the senior official, did you investigate the matter? Was any disciplinary process gone through in arriving at that conclusion?
The First Minister: The clear view of the person who is being accused of that is that it did not happen. Because of the legal constraints that I am under, I am not able to go into the reasons why that is the case and what might actually be the situation here, but others can do that. James Hamilton is one of them. I say again that I do not know of any reason why the committee cannot at least privately speak to the individuals concerned.
Jackie Baillie: Are you not worried that a senior member of your staff was freelancing in that way?
The First Minister: I do not accept that characterisation.
Jackie Baillie: Okay. I will move on to the leak to the Daily Record, which again concerns the confidentiality of complainants. When did you become aware of the leak to the Daily Record?
Coverage of the Salmond Inquiry went national on the BBC Six o’Clock News.
The First Minister: I became aware that there had been a query to the Scottish Government from the Daily Record some time in the afternoon—from memory, it was quite late in the afternoon—of 23 August, which is the day before the story ran in the Daily Record. That is when I became aware of it.
Jackie Baillie: My understanding is that there were actually two stories—one on 23 August and one on perhaps 25 August, which actually had details of complainants. As I understand it—please correct me if I am wrong—the first story talked about complaints against Alex Salmond, but the second went into details of those complaints. Where do you consider the leaks came from? Mr Salmond believes that it was somebody within your team. The Information Commissioner’s Office identified a small group of 23 people, which would be broadly consistent with Mr Salmond’s view. I am curious to know where you think the leaks came from.
The First Minister: I do not know where the leaks came from. I can tell you where I know they did not come from: they did not come from me and they did not come from anybody acting on my authority, on my instruction or at my request. I am as certain as I can be that they did not come from anybody within my office. As you said, the second story had considerable detail. I heard Alex Salmond say that that detail could have come only from the decision report. I was never sent a copy of the decision report.
I have said all along, and I will keep saying, that I was of the view that I should not act in a way that tried to sweep the complaints under the carpet, and therefore I would not have acted in a way that blocked any public comment about the outcome of the matter had the Government thought that that was appropriate. That is not the same as saying that I wanted the issue to be in the public domain.
Since I first became aware of what Alex Salmond was facing, the thought of it becoming public and the thought of having to comment on it horrified me—it absolutely horrified me and made me feel physically sick. I would have been very relieved if it had never come out into the public domain, if that was legitimate and not because I was trying to sweep it under the carpet. No part of me wanted proactively to see the issue get into the public domain. I had nothing to gain from that, and only a lot of pain and grief associated with it.
Jackie Baillie: My understanding is that your office was sent a copy of the decision report. The leak contained confidential information about the two women involved, which I think we would both agree is a matter of serious concern and regret. However, I have been told that the Daily Record was given the story of the complaints about Alex Salmond in order to spike another story that it had about you. Is that remotely true?
The First Minister: That is not something that I had even heard before. Your understanding, which you started that question with, as I think you know, is inaccurate—
Jackie Baillie: I do not know. I am asking.
The First Minister: My office was not sent a copy of the decision report, and, after my principal private secretary appeared before the committee, he wrote to confirm that, because there had been some confusion between that report and the letter that the permanent secretary wrote to me on 22 August to tell me that the investigation had concluded and what was happening with that. However, a copy of the decision report was not, and has not subsequently been, shared with my office. I want to be clear about that, and I think that has been made very clear to the committee, too. Now you can tell me what the story was about me that I was trying to spike.
Jackie Baillie: I do not know. I was asking you—
The First Minister: I am intrigued.
Jackie Baillie: —and I would not reveal that publicly without checking with you.
The First Minister: Just think how implausible that is. I have never heard that before, so that is a new part of the conspiracy that I am hearing today for the first time, but imagine how implausible that is. We have an investigation that starts with two complaints against Alex Salmond, which the Government is investigating throughout much of that year, and we just manage to time the culmination to spike some unknown story about me. That is an incredible coincidence, which is why it did not happen.
Jackie Baillie: Indeed, it is an incredible coincidence, but it gives you an opportunity to rebut that—
The First Minister: As I just have.
Jackie Baillie: —which is very helpful. I will take you back to the seriousness of the leak. Wherever it came from, it was clearly really concerning. Why did you, or anyone on your behalf, not report the matter to the police?
The First Minister: First, I agree about how concerning the leak is. It is one of many aspects that deeply troubles me, because I do not know where it came from. If we put aside the serious nature of the issue with which we are dealing, it always troubles a politician when they do not know where a leak comes from, but I do not know where it came from.
What I do know is that, if you had given me the chance for this whole sorry matter never to be in the public domain, legitimately, I would have bitten your hand off. I never wanted to be publicly commenting on allegations of this nature against Alex Salmond. There is no part of me that wanted to be in that position.
It is also the case that the Government did not benefit in any way from the leak. I appreciate that I say that with hindsight, but the leak has allowed some people, almost from day 1, to cast the Government as the aggressor and the guilty party.
I do not know where the leak came from. I can say, emphatically, that I know that it did not come from me or anybody acting on my authority or instruction. Obviously, there were investigations in the Scottish Government, and Mr Salmond raised the matter and reported it to the Information Commissioner’s Office. There was an investigation and then, I think, a review of that investigation by the Information Commissioner’s Office, including by—forgive me if I do not get the terminology right—its criminal investigation section, which did not find evidence that it had come from within the Scottish Government. Had it—
Jackie Baillie: My recollection is that it did.
The First Minister: Well, if you—
Who leaked the story to the Daily Record, First Minister?
Jackie Baillie: There was a limited number of people who it could have come from, but I am not going to argue the point with you. My question was—
The First Minister: It is quite an important point.
Jackie Baillie: My question was: why was it not reported to the police?
The First Minister: I do not know the answer to that question. I am happy to go away and reflect on that. I do not know whether it was something that we considered. As far as I am aware, it was not reported to the police by the Scottish Government. The ICO investigation decision letter, dated 6 March 2020, stated:
“We are satisfied that there is no evidence to corroborate the complaint that an employee of the Scottish Government unlawfully obtained and disclosed personal data relating to Mr Salmond. We are also satisfied that there is no evidence that the Scottish Government acted in breach of Article 5(1) of the Regulation in relation to the processing of Mr Salmond’s personal data.”
Mr Salmond has pointed to a comment made—I will probably not be able to find this now—when, I think, the decision was being reviewed at his request. Somebody said that they were sympathetic to the hypothesis that the leak could have come from within the Scottish Government, but they had no evidence of that, and, in fact, they expressly said that it could also be said that there was a possibility that it came from other sources as well. I put to you, Ms Baillie, that it is not true to say that the Information Commissioner said that the leak came from the Scottish Government.
Jackie Baillie: I will ask you again: who else knew about that? Who else had details of the complaints and would have leaked them to the press?
The First Minister: In terms of the identities of people in the Scottish Government who would have had access to the decision report, I would have to check and get back to you. I did not have access to the decision report, and nor did my office. I think that you have heard evidence that the matter was referred through the Crown Agent to the police, but, as I understand it, the police did not take a copy of the decision report. Obviously, Mr Salmond and his lawyers had a copy of the decision—I say that simply as a statement of fact.
I do not know where the leak came from, and I cannot say that emphatically enough. I wish I did know where it came from. Like everybody else, I can hypothesise and speculate, but I do not know. However, I know emphatically that it did not come from me or anybody acting on my authority or instruction.
Jackie Baillie: Will you ask the police to investigate the matter?
The First Minister: I am happy to consider that, but I think—
Jackie Baillie: Given your concerns, which I share, surely we should do that?
The First Minister: My saying that I want to consider that is not an indication that I do not think that it is serious. I think that you heard a little bit about the way in which such things are reported for criminal investigation from the Crown Agent yesterday. I will stand corrected if I am getting any of this wrong, because I am not an expert on the legal basis, but the ICO criminal review team looked at it. Had it thought that there was evidence, it would have referred the matter through the police or Crown Office. The fact that the ICO has already done a review and decided that there was no evidence leads me to believe that there might not be much purpose in doing what you are asking me to do. The process has already been undertaken. I will not sit here and answer definitively right now; however, given that you have asked me, I will consider it and come back to you when I have had the chance to do so.