Kevin Drummond QC: Why committee of inquiry redaction saga should concern us



Retired sheriff Kevin Drummond QC shares concerns arising from the redaction dispute that dominated the final days of the Holyrood committee on the handling of harassment complaints.

As a lawyer I care not a whit what political conclusions our Parliament and its Committee of Inquiry reach, or have reached, in the present Salmond/Sturgeon political dispute.

On the other hand, I care a great deal that our Parliament acts within the law, that our Crown Office does likewise and that it upholds the rule of law for all, including publishers.

I set out below just one small segment of one event which took place in the course of the recent Committee of Inquiry and I set out my understanding of the sequence in which those events occurred.

It may be an insignificant series of incidents in life’s rich tapestry; it may be of interest only to constitutional geeks, but it might tell us much about the processes which are at work in our system.

I set out the events in the form which I do in order that any error of fact or law can be readily identified and corrected by anyone involved or sufficiently interested.

1.

  1. Lady Dorrian presided over the trial of Alex Salmond in the High Court and made an Order protecting the identity of the complainers.
  2. Lord Woolman presided over part of the Judicial Review (JR) proceedings and made an order protecting the identity of the complainers.

2. The Spectator magazine published the whole of Alex Salmond’s written submission to the Committee of Inquiry and was threatened by Crown Office with prosecution for breach of the orders.

The Spectator was instructed by COPFS not to make readers aware of the threat of prosecution but despite the instruction, The Spectator published that information.

3. On 11 February 2021, in an incidental application on her original order by The Spectator, Lady Dorrian said this:

The committee’s decisions

[9] All matters relating to the decisions of the committee, its way of working, the rejection or acceptance of submissions, the question whether, when and to what extent redaction of material was necessary to enable it to consider material which could not be published for one reason or another, whether to accept material on a confidential basis, the way in which it ensured adherence both to the order and generally to the principle that complainers in sexual cases should not be identified, are in my view wholly irrelevant to any matters which it is within the jurisdiction of the court to address. These are all matters entirely in the hands of the committee and it is not for this court to interfere with that or to seek to direct the committee in any way.” (my emphasis)

4. The Committee of Inquiry voted not to publish Salmond’s written submission; it subsequently changed its mind and published the full submission then changed its mind again and published a redacted version of the submission, all in the following circumstances.

(The information and sequence of events set out below is extracted from the Answer to Parliamentary Question S5W- 35498 and an email to myself from the Presiding Officer dated 15 March 2021 in response to a request from me as to how the Scottish Parliament Corporate Body ( SPCB) came to be taking the decisions which they did.)

5. On Wednesday 17 February 2021, the Committee met and decided by majority that it could not publish AS’s written submission. By reason of lack of unanimity the Committee referred the matter that evening “to the SPCB for an urgent decision on publication”.

6. On the morning of Thursday 18 February, the SPCB considered the request from the Committee: it adjourned consideration for advice from officials. It reconvened later that same day and concluded the submission could be published. It so informed the Committee.

7. On Monday 22 February, the Committee published the unredacted written submission.

8. On Monday 22 February, COPFS wrote to SPCB reminding the SPCB of the terms of the court order and “recognising that decisions on publication were a matter for SPCB”.

After the submission had been published COPFS again wrote to SPCB.

9. On Tuesday 23 February, the Presiding Officer called an urgent meting of SPCB to consider the letter from COPFS; on the same day the Presiding Officer sought clarification of the terms of the letter from COPFS.

“COPFS requested that the terms of their letter to the SPCB remain confidential.”

10. After due consideration of the letter and mindful of the balance of judgements it had undertaken in relation to its earlier decision, the SPCB decided that, while the submission could still be published, some of the content of the former First Minister’s submission required to be redacted.

11. The Committee immediately withdrew the full submission and published a redacted version of the submission.

12. On Wednesday 24 February, the Lord Advocate appeared in Parliament to answer an emergency question on COPFS’s letter to the SPCB following which the written submission had been redacted. The Lord Advocate explained to the effect that the matter had been dealt with by Crown Office lawyers without reference to him. He said he had not been consulted.

13. On Friday 26 February, Mr Salmond gave evidence on oath before the Committee. On more than one occasion the Convenor of the Committee restricted questions addressed to or answers by AS by reason of “rulings by SPCB”.

The SPCB was created by section 21 of the Scotland Act 1998. It is a Service Company created by statute to carry out limited functions on behalf of the Parliament. Its powers are set out in Schedule 2 to the Act. Its powers might include publishing or not publishing. It has no executive power whatsoever to entitle it to edit, redact or otherwise qualify the written evidence of any witness to a Parliamentary Committee.

On the foregoing facts, it is my submission that:

  1. The Committee acted incompetently in seeking a “ruling” from the SPCB on publication. The SPCB has no such power.
  2. The Convenor of the Committee of Inquiry acted incompetently in restricting questions by reason of “rulings” of the SPCB.
  3. The SPCB acted incompetently in deciding that some of the content of the former First Minister’s submission required to be redacted. The SPCB has no such power.
  4. Having regard to the decision of Lady Dorrian on 11th February on the application of The Spectator, the Crown Office acted incompetently in communicating with the SPCB with a view to seeking redaction of any part of the relevant submission after the submission had been published. Esto the publication was a breach of the Orders, it was no longer an anticipatory breach to which COPFS could lawfully draw attention.
  5. The Crown Office acted improperly in requesting the SPCB to treat the terms of their letter as confidential.
  6. The Crown Office acted improperly in requesting The Spectator not to disclose the threat of prosecution.

By way of explanation and in my opinion, if the publication by SPCB of the unredacted written submission breached the orders, the responsibility of COPFS was to draw the matter to the attention of the court for action on the breach.

It has to be a matter of public concern that COPFS makes any threat of prosecution to anyone accompanied by an instruction not to publish the fact that such an instruction was given.

I would be pleased to learn from any source where the authority exists to instruct that such an instruction itself should not be published.

  • Kevin Drummond QC is a retired Sheriff of Lothian & Borders.