Chamber and committees

This is perhaps not the best way to express it but, as an employer, the Scottish Government is not under an absolute duty to report to the police, in all circumstances, matters that it believes might be a crime. That duty is not statutory. However, for the purposes of ethics, if the Scottish Government considered that it had knowledge that a crime had potentially been committed, it would have to seriously consider referring that matter to the police, even if a member of staff—perhaps a victim of that alleged crime—did not want that to happen.

As a Government, we have a particular duty to uphold the rule of law. In those circumstances, we have to be candid with staff. Although staff might say that they do not have space in their lives for an issue to go anywhere near the police, the Government has to reconcile different considerations and is under an ethical duty to think deeply about whether reporting to the police is appropriate.

Absolutely.

We are anxious to ensure that matters are handled very much within the space of employment practice. Obviously, if an individual wishes to pursue some other grievance against the organisation, it might well be appropriate for them to have legal representation, but the setting of this policy is very much in the context of employment-related activity, where support for the individual’s employment or personal position is the prerequisite of the support that has been identified.

That is a difficult question. There are dilemmas here; however, what I have to air is essentially the dilemma for Government. If the Government comes into possession of information that suggests the possibility of criminality, the Government, given its special role in society—like all of us, I believe fundamentally in the rule of law and the importance of Government acting within the law and supporting the exercise of the functions of the law—has to consider that very carefully. The specific position of Government is recognised as putting an obligation on Government to consider how to address such issues.

Therefore, although I completely understand the point that Michelle Thomson puts to me, I think that there also has to be an acceptance of the particular obligations that apply to Government in considerations that might have an issue of proximity to the exercise of the rule of law.

I will take that point away and consider whether we have the balance of that thinking correct. I come at this from the perspective of thinking about the extent to which there will be a public expectation that Government will act in the fashion that I have talked about, because of Government’s role. However, we will give further consideration to whether our thinking on that is in the right space, given the points that Michelle Thomson has put to me.

The important point is that there is the obligation within the policy that all matters have to be handled fully and independently. Essentially, the judgment that will be available to address the issues that Michelle Thomson puts to me is contained within the freedom that is given to investigators to look at all the material that is put before them. A separate adjudicator can consider all those questions without us prescribing weightings or setting out expectations about how it will be handled.

We are recruiting individuals who we think will be able to do justice to a proper investigation and a proper, independent adjudication of a case before it proceeds any further. With those caveats, we essentially leave it to the professionalism and the judgment of those individuals to inform the proceedings.

That would be addressed by the fact that the complaint went no further than stage 1. If a complaint emerged and then was judged to be outwith scope, subject to the caveats that I set out to Mr Lumsden about the engagement with a complainer—if that did not produce any different outcome—that would be the end of the matter.

I will do, convener, and I will draw on Lesley Fraser’s expertise as the Government’s senior information risk owner.

Data handling and management are at the centre of Government. Every year—we heard this in the past few weeks—the National Archives release all sorts of documents from eras that are now ancient history but that you and I can remember at first hand, unfortunately. They contain the judgments and comments of ministers. I often think about them when I feed back on submissions from civil servants and consider what, in 30 years’ time, I want my children to hear that I was saying.

Information retention and handling are crucial to the record of the conduct of policy and actions. I use that example to highlight the necessity of information handling. Of course, the world is completely different now. Whereas, 30 years ago, ministers wrote handwritten manuscripts, digital transactions now generate significantly greater volumes of information, which has to be handled appropriately. If we add on to that data protection legislation and the GDPR, we have significant obligations and duties to ensure that we not only record information properly but handle it properly.

I would not describe the three points that have been raised by Mr Johnson as flaws. Instead, I would describe them as three essential points that are at the heart of the conduct of ministers and how they are expected to act. Ultimately, ministers hold office only because they are appointed as a result of the First Minister’s recommendation, the Parliament’s vote and, subsequently, Her Majesty the Queen’s approval. Fundamentally, though, it is the First Minister who appoints individuals.

The ministerial code is anchored in the choice of ministers being a prerogative of the First Minister and, ultimately, in the First Minister’s judgment of an individual’s suitability to be a minister. That is why the policy and the ministerial code need to conjoin at some point, as they do at stage 4.

The decision making in the process is entirely independent. If a complaint goes forward, there will be an independent investigation and an independent decision, and a report will be passed to the First Minister, who is charged by Parliament—in fact, by the Scotland Act 1998—to select ministers. As a result, that relationship has to be in place. I think that independent adjudication of an outcome is incompatible with the process of ministerial appointment, which is by virtue of decisions of the First Minister. Obviously, the First Minister’s expectations with regard to the conduct of ministers are set out in the ministerial code.

The policy is designed to ensure that we can have a completely independent process, so when the process reaches the First Minister, there has to be a relationship with the ministerial code, which I think is intensely understood by all ministers as being a requirement for their personal conduct.

My proposal is that the policy process should be in place by the end of February—the end of next month—provided that we are satisfied that we have addressed any issues that come from the further round of consultation and dialogue that we are undertaking.

There are a range of other aspects in the schematic diagram that has been provided to the committee. The diagram shows other work that is under way to tackle some of the deeper cultural questions across the organisation. That work will take slightly longer, but the policy process will be in place by the end of February, provided that we are satisfied that we have addressed all the issues that are raised with us.