Salmond v. Sturgeon

On the night of the Scottish independence referendum in September 2014, I was sent to the Marriott Hotel in Glasgow, where the Better Together foot soldiers had gathered to watch the results. From the very first declaration – the bellwether county of Clackmannanshire – it was clear their side had won. Drinks flowed. There was a curry. There were speeches. By 6 a.m. there was dancing. As a journalist, and as a Yes supporter, I would rather have been with the losers: those hopeful young people I had photographed hours earlier in George Square, with their carry-outs and their misplaced confidence. Even in defeat, all the energy lay with them and their hopes for a progressive and outward-looking Scotland. Later, I set off on a tour of the unionist heartlands. It was a drab day, and the people I spoke to were unmoved by their victory. Alex Salmond’s resignation as leader of the SNP was announced on the radio. ‘For me as leader my time is nearly over,’ he said. ‘But for Scotland, the campaign continues and the dream shall never die.’

On 23 March last year I stood outside the High Court in Edinburgh, listening to Salmond again. It was the day that Boris Johnson and Nicola Sturgeon, Salmond’s chosen successor as SNP leader and Scotland’s first minister, announced the start of the UK-wide lockdown. Salmond, who had just been acquitted of thirteen charges of sexual assault against nine women, appeared to be threatening to bring down his former party. ‘As many of you will know,’ he said, ‘there was certain evidence that I would like to have seen [used] in this trial but for a variety of reasons we were not able to do so. At some point, that information, that fact and that evidence will see the light of day.’ The Scottish independence movement has always been a tense accommodation between left and right, gradualist and fundamentalist. Salmond and Sturgeon were once both in the gradualist wing, but their relationship began to fray when she replaced him as leader and he became frustrated that she was failing to capitalise on the SNP’s popularity after 2014 (which he saw as his achievement). He recast himself as a fundamentalist, railing against her caution and sometimes undermining her. In the wake of his trial, his camp – mostly middle-aged white men impatient for a second referendum – have pitted themselves against Sturgeon and her backers, whom they dismiss as ‘the wokerati’.

The committee appointed by the Scottish Parliament to inquire into the Scottish government’s mishandling of its investigation into the first two allegations against Salmond (both made by civil servants) has been sitting regularly since August 2020. It rapidly descended into a partisan free-for-all, with opposition members less interested in the HR error which led the investigation to be ruled unlawful (after a judicial review brought by Salmond) than in trying to find the killer question that would somehow lead to Sturgeon’s resignation. They took evidence in the morning and took to social media in the afternoon. No one has come out of it well: not the committee members, or the obfuscating civil servants, or Salmond, who refused to apologise for his ‘inappropriate’ behaviour, or Sturgeon who, though full of regret, could not shed light on all her government’s mistakes. Though there was no proof of the conspiracy that Salmond believes has been aimed at destroying his career, the SNP administration’s shortcomings were exposed. Meanwhile, the complainers’ experiences were co-opted for political advantage, though their actual voices were absent until, at the last moment, they agreed to give evidence in private.

This whole mess, it could be argued, was born out of a desire to break down existing power structures and to make life easier for women in politics. At the beginning of 2017, Scotland had three female party leaders: Sturgeon, the Conservative Ruth Davidson and Labour’s Kezia Dugdale. Sturgeon and Dugdale backed each other on initiatives such as Dugdale’s 50:50 campaign for equal representation in Parliament and sex/gender quotas on public boards. Sturgeon appointed a female chief of staff, Liz Lloyd, and a number of female special advisers. The civil service in Scotland was headed by a woman, Leslie Evans. When, in 2017, the Daily Mail ran a front-page photograph of Sturgeon and Theresa May with the headline ‘Never mind Brexit, who won Legs-it!’, May dismissed it as a bit of fun, but a spokesperson for Sturgeon responded: ‘Brexit may risk taking Britain back to the early 1970s, but there is no need for coverage of events to lead the way.’

When #MeToo ripped across the globe in October 2017, the Scottish government was particularly receptive. It set up a review of its existing complaints procedure and, having identified gaps, created a new one ‘at pace’: it took seven weeks from conception to sign-off. The new code was retrospective: for the first time employees could bring complaints against former ministers. This was a bold move, but where there is a significant power imbalance, it’s often the case that those who have experienced sexual harassment will wait until the perpetrator has moved on before complaining. The speed with which the Scottish government acted might seem reckless – Salmond made that point repeatedly when giving evidence to the committee – but it wasn’t wrong in predicting that a political scandal was likely to come hurtling in its direction.

That November, while the new procedure was still being drawn up, two civil servants (one a former employee) approached senior officials with claims against Salmond, dating back to 2013 and 2014. Both women had raised concerns informally at the time. Much later, the criminal trial would hear that Woman A had been left in a room alone with Salmond so he could apologise to her. Woman B had talked to her line manager about his actions, but had not wanted to take things further. The Weinstein scandal, however, caused both to think again and, as soon as it became possible, they filed formal complaints.

From this point on, they were failed in every conceivable way. The Scottish government mishandled its own investigation badly. Judith Mackinnon, who had already been in contact with the women in connection with their complaints, was appointed investigating officer in contravention of the rules, and then, after Mackinnon’s report had been completed, Leslie Evans referred the allegations to the Crown Office against the women’s wishes. In August 2018 the report found its way into the hands of the Daily Record, which ran the story under the headline ‘Boozed-Up Salmond “Touched Woman’s Breasts & Bum”’. The following day, Salmond gave a press conference near his home town, Linlithgow, describing the investigation as ‘flawed and bereft of natural justice’. Last year, Woman B told me she spent that weekend trawling social media. ‘Not a word of a lie, I didn’t eat, I didn’t sleep or drink anything,’ she said. ‘I just sat on Twitter and refreshed it and refreshed it, and every time I did there was something new and horrifying being said about me.’ As the police inquiry continued, more complainers came forward. In the end, Salmond was charged with fourteen offences, ranging from indecent assault to attempted rape, against ten women, including the two original complainers (one allegation was dropped during the trial). He was acquitted of all offences.

While the women’s reputations were being trashed, a friend sent me a passage from The Other Wind, the final instalment in Ursula Le Guin’s Earthsea cycle. ‘“How men feared women!” she thought, walking among the late-flowering roses. “Not as individuals, but women when they talked together, worked together, spoke up for one another – then men saw plots, cabals, constraints, traps being laid.”’ Salmond sowed the seeds of his conspiracy theory immediately after the trial. The fact that some of the women had exchanged messages was turned into something sinister. Salmond, whose defence was partly predicated on the idea that his own behaviour was inappropriate but not criminal, was soon recast as a victim. The complainers were portrayed by some as liars and whores who had perjured themselves in an attempt to prevent him returning to frontline politics. In service of this narrative, the law was misrepresented, and Salmond’s acquittal was said to show that the jury – the ‘MAJORITY-FEMALE jury’, as Twitter warriors liked to emphasise – hadn’t believed the women, rather than that they’d been unable to find the allegations proven beyond reasonable doubt.

Immediately after the trial, I spoke to some of the other complainers. They had been offered security and were struggling to cope with the backlash. ‘It is so hard to see people take the jury’s finding and then say that means we were all conspiring,’ Woman B (Woman K in the trial) told me. ‘Throughout this whole thing, we’ve not been able to have a voice and now there is no way any of us can counter the terrible things that are being said about us.’ Anonymity is essential in sexual offence cases, but for these women it has proved double-edged. Referred to during the trial by the letters A-K, the women were branded the ‘Alpha Betties’, and their anonymity allowed the conspiracy theorists to suggest they were all members of Sturgeon’s inner circle. ‘If only you knew their identities, everything would become clear,’ they would mutter. None of this is true. Three of the women have names that would be recognisable to people in the political bubble, while two more might be familiar to some journalists and party activists. The remaining four, however, were civil servants, whose names would mean little to anyone who didn’t know them.

Not all of the women knew one another, and, of those who did, not all of them were aware that the others had made complaints. A few of them did communicate from time to time. There were messages, too, between Scottish government and SNP officials, shared on a WhatsApp group called ‘Vietnam’. A few of these messages became public. One from Evans, sent after the government lost the judicial review and found on the phone of Barbara Allison, then Scottish Government director of communications, read: ‘We have lost the battle but we will win the war.’ Two messages from the SNP chief executive, Peter Murrell (who is married to Sturgeon), sent the day after Salmond was first charged, were leaked to the Westminster MP and former Holyrood justice secretary Kenny MacAskill, one of Salmond’s allies. In the first, Murrell appeared to call for pressure to be put on the police to speed up their investigations. In the second, he added: ‘The more fronts he [Salmond] is having to firefight on the better for all the complainers.’ Most of the WhatsApp messages were ruled inadmissible as evidence in the trial, but Salmond could not hand them over to the parliamentary inquiry because a law that his own government introduced forbids the sharing of material disclosed by the Crown to a defendant in a case. But the mystery surrounding the messages worked to his advantage. It allowed his supporters to hint at ‘smoking guns’, and MacAskill to talk of ‘dark forces’ at the heart of the Scottish establishment.

The nationalists aren’t the only ones who have been trying to spread disinformation. With a potential SNP majority in the upcoming Holyrood elections seen by some as constituting a mandate for a second IndyRef, unionist forces have been organising too. ‘It’s time to fight back,’ the broadcaster Andrew Neil tweeted, launching an attack on Scotland’s devolved institutions. Ignoring the country’s very different legal and political systems vis à vis the rest of the UK, the Spectator magazine, of which Neil is chairman (its editor, Fraser Nelson, is also a Scot), went to court to try to force the parliamentary committee to publish evidence it had been warned might breach a court order imposed by Lady Dorrian, the trial judge, to protect the complainers’ anonymity.

When Dorrian refused its requests to alter her order, merely adding a clause to reinforce its existing scope, the Spectator nevertheless declared it a victory. When the Scottish Parliamentary Corporate Body buckled under pressure and overturned the committee’s decision, publishing the evidence – a submission by Salmond – the Spectator lapped up the praise. And when the Crown Office asked for some paragraphs to be redacted, the Spectator accused it of ‘going rogue’ and staging a politically motivated intervention, though it was merely upholding the law. Right-wing publications ran opinion pieces describing Scotland as a ‘banana republic’ or a ‘one-party state’. Team Salmond and Team Neil joined forces, using the same lawyers to fight the same battle. Despite their differing politics, the two men are cut from the same cloth. Both chippily affect a contempt for the establishment while striving to belong; both are ‘big beasts’ consumed by a determination to bring down Sturgeon.

Three inquiries were set up into the Salmond affair. James Hamilton, a former director of public prosecutions in Ireland, has been investigating the possibility that Sturgeon breached the ministerial code, while Laura Dunlop’s review of the harassment complaints procedure has just reported (she recommended that, in future, allegations should be investigated by an independent body rather than the Scottish government, but said there should be no time limit on complaints). It was the parliamentary inquiry, however, that was supposed to provide the stage for Salmond’s revenge. Most of the key protagonists were involved: Evans, Murrell, the lord advocate, James Wolffe (whose dual role as legal adviser to the Scottish government and head of the prosecution service has been called into question), and of course the allies turned enemies, Salmond and Sturgeon.

The committee was thwarted in its work not only by the legal restrictions but also by the Scottish government’s apparent lack of co-operation. It took two Holyrood votes and a no confidence motion against the deputy first minister, John Swinney, before he finally shared the legal advice the Scottish government received about the judicial review brought by Salmond. Even then, the information Swinney released was incomplete and reached the committee the night before Sturgeon was due to give evidence.

Salmond himself continually tried to dictate the terms and timing of his appearance, refusing to appear after documents weren’t published in the form he wanted. After a year during which proxies made grand assertions on his behalf, his performance was quite restrained when he finally appeared before the committee on 26 February. He didn’t accuse the complainers of conspiring against him, but claimed that four officials – Murrell, Ruddick, Lloyd and the SNP compliance officer, Ian McCann – were involved in a ‘malicious and concerted effort’ to ruin his reputation and have him removed from public life (allegedly because they perceived him as a threat, although Salmond had lost his Westminster seat in 2017 and doesn’t sit in the Scottish Parliament).

When the texts and WhatsApp messages – so potent while secret – were finally scrutinised by the committee, they decided against making them public. The messages between the women were described as expressions of support; the ones between the officials were summarised by one committee source as ‘private conversations we should probably not have been intruding on’. The source said Murrell’s messages, too, were more innocuous when read in context.

In her appearance before the committee, on 3 March, Sturgeon presented her memory lapses and the discrepancies in her testimony as the result of her distress over Salmond’s behaviour; he was ‘somebody that was a really close friend of mine, that I cared about’. Murdo Fraser, a Conservative MSP, asked her whether she owed the Scottish people an apology for asking them to trust Salmond. She replied that it was unreasonable to expect her to be responsible for his behaviour. Sturgeon was right to highlight the fact that women are often held accountable for men’s bad behaviour, but there is a thin line between pointing out Salmond’s flaws, and the use of them as a shield against criticisms of her own administration’s shortcomings. There is also a risk that, in demonising Salmond, we fail to remember that he was subjected to a cack-handed and unlawful HR process and that, if he hadn’t fought it, the government’s mistakes would never have come to light.

The committee members spent much of their time during Sturgeon’s appearance trying to find possible breaches of the ministerial code (Hamilton is the ultimate arbiter on this). Sturgeon initially told Holyrood that she first heard about the allegations from Salmond himself when he visited her house on 2 April 2018. It later emerged that she’d met with his former chief of staff, Geoff Aberdein, four days earlier. Committee members asked if she could really have ‘forgotten’ the earlier meeting, as she claimed. They also wanted to know why she failed to record and report the 2 April meeting despite its being government business. ‘My head was spinning, I was experiencing a maelstrom of emotions, I had been told something pretty shocking by Alex Salmond and there were a number of things in my head,’ Sturgeon told them. MSPs are fixated on these meetings because a breach of the ministerial code would trigger an automatic resignation, or did in the days before Priti Patel. But the public doesn’t seem to care about exactly when Sturgeon knew, and you can understand why. Pan out and what do you see? A woman who refused to bow to pressure to help a friend when other women made sexual harassment complaints against him: ‘As first minister I refused to follow the age old pattern of allowing a powerful man to use his status and connections to get what he wants.’

More important, but less scrutinised, is the HR error that led to the application of the new complaints process being declared ‘unlawful and tainted by apparent bias’. Evans’s decision to appoint Judith Mackinnon, who’d had extensive prior contact with the complainers, as investigating officer is bizarre. And yet she not only kept her job, but had her contract extended. As for the judicial review, the Scottish government had been told on 31 October 2018 that there was a high chance it would lose, but it did not concede until 8 January 2019, after senior counsel said the case had become ‘unstateable’. Waiting so long meant that the cost to the taxpayer rose to more than £600,000. By December 2018, it had become clear that there was information that had not yet been disclosed to the judge. It was this that tipped the Scottish government’s case from weak but stateable, to unstateable.

‘What it should have done when it lost the judicial review was to admit it had messed up,’ one of the committee members, Andy Wightman, who sits as an independent, told me. ‘It should have said: “This is a serious mistake. We are going to publish all the material and a narrative about what went wrong and be really open.”’ But ‘they didn’t disclose anything to help the public understand what had gone wrong. The committee then struggled and struggled to get documents – and then, at 6 p.m. on the day before the first minister appears, we eventually see the external advice. That’s a massive failing. That’s not the way governments ought to behave.’

In recent weeks, the SNP has been accused of failing to properly investigate allegations against the party’s chief whip at Westminster, Patrick Grady. The irony is that actions designed to make it easier and safer to report sexual harassment have served to shore up existing barriers; a policy designed to help women take on powerful men has demonstrated only the potential costs of doing so.

On 18 March, the parliamentary committee’s report was leaked; it found that Sturgeon had given misleading and inaccurate evidence, potentially breaching the ministerial code (though it didn’t say she had done so ‘knowingly’). The Hamilton inquiry is also expected to publish its report before Holyrood goes into election recess on 25 March. Sturgeon, whose position appeared unassailable a few months ago, now faces a daily onslaught of negative headlines over lockdown, the vaccination programme and the transgender debate – most recently focused on the Hate Crime Bill, which does not include ‘sex’ as an aggravator. Evans, Mackinnon and Lloyd may yet find themselves thrown overboard.

The SNP’s problems are not all linked to the Salmond allegations. After nearly fourteen years in power, the party is exhausted. But, with or without Sturgeon at the helm, there is no effective opposition (the Tories’ Scottish leader isn’t even in the Scottish Parliament, and Scottish Labour’s leader, Anas Sarwar, its sixth in the last decade, has only just been elected). The polls were predicting that on 6 May the SNP would regain the majority it won in 2011 (despite a PR system that was supposed to prevent absolute majorities) and lost in 2016, but now a hung parliament is being forecast (and a drop to 49 per cent support for independence). I find it hard to imagine that the spirit of 2014 will ever be rekindled. Defeat back then was strangely energising. Were the SNP to secure another referendum, could a truce be called in the party’s civil war? What shared idea of Scotland would Yes supporters unite behind now? It’s been a long six years.

19 March