Douglas J. Cusine: Questions around the Salmond redactions

There is a saying, “The Devil finds work for idle hands to do.” The “Devil” in this case is Covid-19 which has required many of us to not be out and about as we did. Had we not been subject to the strictures associated therewith, we would probably not have paid the same attention to some issues. Being idle, from time to time, we looked at the remit of the Scottish Parliament Corporate Body (SPCB). For those of you who may never have heard of this body, we too were unaware of its existence until the setting-up of the committee charged with inquiring into the handling of harassment claims against the former first minister, Alex Salmond.

SPCB is a creature of the Scotland Act 1998 and it is dealt with in section 21 and Schedule 2. Section 21 sets out the membership of the board, including providing that the presiding officer is the chair, and there are five others, but for present purposes, subsection (3) is relevant:

“The corporation shall provide the Parliament, or ensure that the Parliament is provided, with the property, staff and services required for the Parliament’s purposes.” Its powers are set out in Schedule 2 and for convenience, and to avoid any misrepresentation or misunderstanding which could arise from selective quotation, we set these out in full.

“Powers
4. (1) Subject to sub-paragraph (4), the corporation may do anything which appears to it to be necessary or expedient for the purpose of or in connection with the discharge of its functions. [as set out in s. 21]
(2) That includes, in particular—(a) entering into contracts,(b) charging for goods or services,(c) investing sums not immediately required in relation to the discharge of its functions, and(d) accepting gifts.
(3)The corporation may sell goods or provide services, and may make arrangements for the sale of goods or provision of services, to the public.
(4)The corporation may borrow sums in sterling by way of overdraft or otherwise for the purpose of meeting a temporary excess of expenditure over sums otherwise available to meet that expenditure.
(5)The corporation may borrow money only under sub-paragraph (4) and may borrow under that sub-paragraph only in accordance with the special or general approval of the Parliament.”

An important question is where in these stated powers does one find anything about handling evidence to be submitted to the Parliament, its standing committees, or a committee such as the ‘Harassment Committee’.

If you are struggling, so too are we.

This is not a theoretical question, because in the course of the committee’s deliberations, it was disclosed that following a ‘suggestion’ by the Crown Office, the SPCB redacted some of the former first minister’s evidence. (We observe, in passing that parts of the report by James Hamilton QC are also redacted, and that was not done by him: of which, more below) It is obvious that the ‘Salmond redactions’ were done without any consultation with him, because it was touch-and-go whether he would appear in person to give evidence as a result of this.

As far as we can see, neither s.21 nor Sch.2 has been amended to include this power. It is a power so different from the others that one could not infer its existence from a consideration of the stated powers. On 23 February, Miles Briggs MSP asked about the rationale for the redaction (S5W-35498): the response was along the lines of “to protect the identity of the complainers”. That came from David Stewart MSP who is responsible in SPCB for ”facilities”, and not from Jackson Carlaw MSP who is responsible for “governance” which includes “legal services”.

The questions which arise are these:

1. How did the written submission of the former first minister come into the possession of the SPCB?
2. How did the CO know that the SPCB had his submission?
3. Did SPCB tell the CO, and if so, why?
4. Who made the decision about what should be redacted? Why the CO took it upon itself to interact with the SPCB is a bigger issue and not one for this article.

There may be a simple answer to some of this. The SPCB may not normally be the body which photocopies material for the Parliament or its committees, but may, of course, in a general way, oversee such operations, e.g. to ensure that resources are not improperly used. Given the sensitive nature of some parts of the former first minister’s written submission, there may be nothing sinister in its being handled by the SPCB and there is a part of SPCB which is described as “egal services”. Having got the submission, one can understand why SPCB responded to a request (if that is what it was) from the CO to redact certain parts. If that is the explanation, the SPCB would not have been acting beyond its powers, and even if in theory, it did so act, that was justifiable. It seems highly improbable that a presiding officer would be a party to an administrative body, which SPCB is, subverting the operation of Parliament or its committees.

Having said all that, a question still hangs over the involvement of the CO in that redaction, but a further question remains: who gave the instruction to redact parts of the Hamilton Report, the result of which, in my view, renders some of it unintelligible? Some of the redactions may relate to the identity of the complainers; other parts certainly do not.

The CO might possibly have had a hand in the first redactions, if its concerns were limited to ensuring that the complainers’ identities were not ascertainable. One assumes that the CO had no hand in the other redactions. How to find out? The answers could, in theory, be obtained by a “freedom of information” request, but it is well known that any organisation which does not wish to comply will find an excuse, however implausible, not to comply.

Judicial review is, of course, open, but it is an expensive process and there is no guarantee of success. We may, therefore, never know how this came about, and, if so, that is unacceptable. Someone produces material for the Parliament, or one of its committees, but has no control over the form in which that material will ultimately be presented.

What’s going on, or quis custodiet ipsos custodes?