Time’s Up Cabinet Secretary

Time’s Up Cabinet Secretary

by Liam Kerr
article from Thursday 1, February, 2018

POLICING IN SCOTLAND is going through an extremely contentious period.

Chief Constable Phil Gormley has dominated the news after last week saw the seventh allegation being filed against him. This came two days after his ‘special leave’ was extended for a further four weeks. The investigation for gross misconduct against him continues, and rightly so.

However, most of us will remember that it wasn’t that long ago that the Scottish Police Authority (SPA) had agreed to allow Mr Gormley to return to work. The Cabinet Secretary for Justice, Michael Matheson, updated Parliament on 10 January to inform Members that he had twice met with the SPA and had intervened to advise against Gormley’s return to work.

However, the elephant in the room is the length of time it took Michael Matheson to inform Parliament – 9 weeks after his intervention! What is worse is that no minutes were taken of either meeting.

In response, the Scottish Conservatives lodged a motion and led a debate “that the Cabinet Secretary for Justice has not acted transparently or openly when updating Members regarding the Chief Constable’s investigation, special leave and potential return to work.

Let me be clear. This debate was not about whether the decision that the Chief Constable should return to work was right or wrong. It was whether or not the Justice Secretary acted in a legal, transparent and open manner, when intervening in the SPA’s decision to allow Phil Gormley to return to work.

So, has Michael Matheson acted transparently and openly?

Looking at the Ministerial Code of Conduct, Civil Service Code and Guidance for civil servants, records should be kept of official meetings that deal with substantive government businesses. In other words, Michael Matheson should have ensured that minutes were taken, providing that a discussion on the future of Scotland’s Chief Constable is substantive government business.

However, the lack of clarity continues. On 11 January, the Justice Secretary told BBC Scotland that he would be happy to release minutes of his meeting with the SPA. Interestingly, later that day, a Scottish Government spokesperson said that this was not possible as no minute of the meeting had been taken.

Michael Matheson is either hiding something within the (apparent) recorded minutes of his discussion with the SPA, or no minutes were taken. Either way, there is no transparency.

In terms of openness, the Justice Secretary gave a statement to Parliament on 29 November regarding Policing, yet he omitted any reference to his meeting with the SPA. Furthermore, 9 weeks later, on the 10 January, the Justice Secretary gave a statement to Parliament explaining his actions.

During that statement, I specifically asked whether the Cabinet Secretary whether or not he had sought legal advice as his interventions may have broken the Ministerial Code. In the name of transparency and openness, we still do not know, he failed to answer the question!

The Cabinet Secretary further failed to disclose that one of his senior civil servants had met with Phil Gormley in Edinburgh on 30 November to discuss the same matter further. Unsurprisingly, the meeting was unminuted.

The next question is whether or not Michael Matheson has acted legally?

During scrutiny of the creation of Police Scotland, concerns were raised regarding police independence as a result of the centralisation of a single force. In response, the SPA was established as a statutory body with, not only oversight of the operation of the single force, but with the sole responsibility to decide operational deployment of the force senior officers.

The SNP Government is nothing but a contradiction. They have created a single police force for Scotland with adequate independent checks and balances, but completely ignore this by trying to override an independent decision by means of a possibly unlawful interference.

On the 12 September, the Justice Secretary told Parliament that a request was made by the Chief Constable to ask for a period of special leave. According to Michael Matheson, “there is no ministerial involvement in that process”.

Similarly, on 29 November, the Justice Secretary said “we created the Scottish Police Authority and the Police Investigations and Review Commissioner to provide independent investigation and decision making on misconduct matters.”

Yet, it transpires that less than three weeks earlier Michael Matheson had apparently inserted himself into that process. Or had he? We simply do not know whether the Justice Secretary made a possibly unlawful interference in an independent decision of the SPA, behind closed doors. The reason why? The meeting was unrecorded.

Dr Kath Murray, a criminal justice academic, commented that “this was a critical meeting, not just a chat. Without minutes, it’s not clear whether the intervention was a request or a direction. These things matter.”

Yes, they do.

Without any record of what happened between Michael Matheson and the SPA, we simply do not know how far the Justice Secretary intervened in the process. All we do know is that the former chair of the SPA, Andrew Flanagan, felt obliged to reverse a board decision to allow Phil Gormley to return to work, after Michael Matheson met with SPA officials. He said the Justice Secretary called it a “bad decision”. Was this a request or a direction from the Justice Secretary? You can draw your own conclusions.

One thing is for sure, the Justice Secretary has a habit of trying to dictate how independent bodies should undertake their duties. More recently, we have seen one of the Justice Secretary’s senior civil servants, Donald McGillivray, try to delay the publishing of a report by the Police Investigations and Review Commissioner, Kate Frame, late last year. Ms Frame responded by saying “My perception of your remarks is governmental interference with my independence”. Interestingly, the report made no mention of Phil Gormley or the role of the Chief Constable, it simply criticised the SPA’s complaints procedure as lacking clarity and transparency.

However the Justice Secretary conducted himself when interfering with the SPA’s decision on Phil Gormley, one thing is for sure: throughout this process, Michael Matheson has not acted in a manner that is either transparent or open. Greater transparency and public accountability is necessary. It is simply not acceptable for a Government to behave in this way.

The Scottish Conservatives are calling on Michael Matheson to resign and for an investigation by independent advisors on the ministerial code. The Justice Secretary has torn up the rulebook that is supposed to protect the independence of our police service, and as such, the Scottish public can no longer have confidence in him.

Liam Kerr is a Conservative MSP for the North East of Scotland and shadow Justice Secretary


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