Salmond denies sexual misconduct allegations

[Nearly Sane]

Precedent for what? Precedent for a Judicial Review determining that there was procedural impropriety and requiring the public body to rerun the process again? Happens all the time.

What should happen is that the investigation should be rerun using a process that doesn't fall foul of challenge by Judicial Review - surely you can agree with that?

Do parliamentary inquiries into the process happen all thr time? No.

And given that I don't know what might be the impact of such an inquiry due to the lack of precedent, I won't make a judgement on should till I see what happens.

[ProfessorDavey]

Do parliamentary inquiries into the process happen all thr time? No.

And given that I don't know what might be the impact of such an inquiry due to the lack of precedent, I won't make a judgement on should till I see what happens.

We aren't talking about the parliamentary inquiry - we are talking about the judicial review - they hand down decisions all the time that indicate a process not to to have been fair or lawful and in these circumstances the public body should revise its process and then rerun the investigation.

We aren't in uncharted territory at - except that the accused (in the original investigation) and petitioner in the Judicial Review is an ex first minister. You are heading into deeply murky waters if you think that the nature of the individual makes a case without precedent in the eyes of the law. The law should be the same for an ex first minister as it should be for Joe Public.

[Nearly Sane]

We aren't talking about the parliamentary inquiry - we are talking about the judicial review - they hand down decisions all the time that indicate a process not to to have been fair or lawful and in these circumstances the public body should revise its process and then rerun the investigation.

We aren't in uncharted territory at - except that the accused (in the original investigation) and petitioner in the Judicial Review is an ex first minister. You are heading into deeply murky waters if you think that the nature of the individual makes a case without precedent in the eyes of the law. The law should be the same for an ex first minister as it should be for Joe Public.

I've been talking about the parliamentary inquiry. That's strangely why I have been referring to it in my posts.

[ProfessorDavey]

I've bern talking about the parliamentary inquiry. That's strangely why I have been referring to it in my posts.

Well I am talking about the Judicial Review and my questions to you are in that context - so again. On the basis that the Judicial Review concluded that the original investigations were “unlawful in respect that they were procedurally unfair and they were tainted with apparent bias”

What should happen is that the investigation should be rerun using a process that doesn't fall foul of challenge by Judicial Review, in other words using being procedurally fair and not tainted by apparent bias - surely you can agree with that?

And even in respect to the inquiry - again this isn't without precedence - all sorts of public bodies will hold an inquiry into their procedures and those involved if they have received Judicial Review judgement that they original procedures were unfair and/or biased. That the public body in this case is the scottish government is irrelevant.

[The Accountant, OBE, KC]

Why?

That is using the outcome of the Judicial Review to support its initiation when other remedies had not been exhausted.

How would that argument work had the Judicial Review determined that the processes for initial investigation (stage 1) were hunky dory?

For the courts to decide to agree with Salmond's lawyers and hear a judicial review, they would have determined that the alternative remedies were not adequate and appropriate. I was not in court so I have not seen the evidence in order to be able to argue whether the court's decision to hear the judicial review was right or wrong. You are welcome to think it was wrong, without having seen the evidence or being able to present the evidence to justify your position.

You are entitled to your opinion because this forum seems to be a place for presenting opinions. 

[Nearly Sane]

Well I am talking about the Judicial Review and my questions to you are in that context - so again. On the basis that the Judicial Review concluded that the original investigations were “unlawful in respect that they were procedurally unfair and they were tainted with apparent bias”

What should happen is that the investigation should be rerun using a process that doesn't fall foul of challenge by Judicial Review, in other words using being procedurally fair and not tainted by apparent bias - surely you can agree with that?

And even in respect to the inquiry - again this isn't without precedence - all sorts of public bodies will hold an inquiry into their procedures and those involved if they have received Judicial Review judgement that they original procedures were unfair and/or biased. That the public body in this case is the scottish government is irrelevant.

if you want to ignore my points and the reality of what is actually going on, it defeats any point to the discussion..

[The Accountant, OBE, KC]

So you are using the argument that the court agreed to Judicial Review as confirmation that their decision was right, yet you are also arguing that when the initial inquiry into the allegations found that there was a case to answer that the decision was flawed (and therefore had to be subject to judicial review at an early stage, and certainly not as last resort).

Guess what, public bodies and the courts sometimes get things wrong - hence the need for Judicial review and appeals. I doubt very much that a similar case for Judicial review brought by Joe or Joanne Public, rather than the biggest beast in Scottish politics would have received anything other than 'go away and come back once the internal process is complete'.

The flaws in the investigation process are mentioned in my link. Presumably these flaws are what influenced the court to hear the judicial review as the flaws in the process meant alternative remedies to a judicial review in this case were not adequate and appropriate.

[The Accountant, OBE, KC]

But surely whatever the review comes up with there is a necessity to rerun the process - this is surely what the Judicial Review requires as it did not quash the decision (not that there really was one) but dismissed the process - thus the inquiry should be rerun in the interests of justice.

If there is a way to rerun the process in a fair way, sure I agree it should be re-run. If the civil servants on behalf of the Scottish Govt are too incompetent to run a fair process then re-running the process is not possible at the moment until some civil servants are found who can run a fair process.

Presumably the Parliamentary inquiry is to establish why the civil servants / Scottish government were too incompetent to run a fair process in order to avoid the Govt making the same mistakes again if the process is to be re-run. The Parliamentary inquiry has been asking repeatedly to see the legal advice given to the Scottish government relating to the judicial review and minutes of any meetings the Govt had about the judicial review. Once the inquiry has seen it and understood and established how the government botched its investigation process, we may see a re-run of the process minus the aforementioned flaws.

[Nearly Sane]

If there is a way to rerun the process in a fair way, sure I agree it should be re-run. If the civil servants on behalf of the Scottish Govt are too incompetent to run a fair process then re-running the process is not possible at the moment until some civil servants are found who can run a fair process.

Presumably the Parliamentary inquiry is to establish why the civil servants / Scottish government were too incompetent to run a fair process in order to avoid the Govt making the same mistakes again if the process is to be re-run. The Parliamentary inquiry has been asking repeatedly to see the legal advice given to the Scottish government relating to the judicial review and minutes of any meetings the Govt had about the judicial review. Once the inquiry has seen it and understood and established how the government botched its investigation process, we may see a re-run of the process minus the aforementioned flaws.

The inquiry is about establishing what happened. It does not start from an assumption of incompetence.

[ProfessorDavey]

The inquiry is about establishing what happened. It does not start from an assumption of incompetence.

Nor do most inquiries which are about determining that happened in a situation where something has gone wrong.

Nonetheless I note you've still not provided your response to a rather simple question - so I'll ask again:

What should happen is that the investigation should be rerun using a process that doesn't fall foul of challenge by Judicial Review, in other words using being procedurally fair and not tainted by apparent bias - surely you can agree with that?

[Nearly Sane]

Nor do most inquiries which are about determining that happened in a situation where something has gone wrong.

Nonetheless I note you've still not provided your response to a rather simple question - so I'll ask again:

What should happen is that the investigation should be rerun using a process that doesn't fall foul of challenge by Judicial Review, in other words using being procedurally fair and not tainted by apparent bias - surely you can agree with that?

And I will repeat, I will wait until the PARLIAMENTARY INQUIRY is complete to decide what should happen next because I would rather deal with the actual situation than some dumbed down hypothetical that ignores the real.case.

[ProfessorDavey]

And I will repeat, I will wait until the PARLIAMENTARY INQUIRY is complete to decide what should happen next because I would rather deal with the actual situation than some dumbed down hypothetical that ignores the real.case.

I'm sorry that is obfuscation of the n-th degree.

Sure - the inquiry may determine the most appropriate process for a rerun, but that is entirely separate from accepting, in principle, that the outcome of the Judicial Review should result in the investigation should rerun using a process that is procedurally fair and not tainted by apparent bias.

Why is it so hard for you to accept this basic point of principle and justice.

[Nearly Sane]

I'm sorry that is obfuscation of the n-th degree.

Sure - the inquiry may determine the most appropriate process for a rerun, but that is entirely separate from accepting, in principle, that the outcome of the Judicial Review should result in the investigation should rerun using a process that is procedurally fair and not tainted by apparent bias.

Why is it so hard for you to accept this basic point of principle and justice.

Because I deal with the real world and what has happened and is happening.

[ProfessorDavey]

Because I deal with the real world and what has happened and is happening.

No - you aren't actually dealing with the real world and what has happened - what has happened is that a Judicial Review has determined the original investigation to be procedurally flawed - the outcome of that should be that the investigation is rerun using procedures that aren't flawed.

You are in the world of speculation about what the inquiry might, or might not, conclude in the future. I am sitting in the real world where we know that the Judicial Review has determined.

The reality is, of course, that this is too politically incendiary and the whole sorry tale is being kicked further and further into the long grass. And while that happens justice is not being served as there has been no determination as to whether the allegations are upheld under the civil balance of probabilities burden of proof.

And it is now pretty well exactly three years since these allegations were received and an investigation opened. In what way is that fair on the claimant who, three years on, still haven't had their complaints dealt with under civil proceedings. I'm not, in any way saying that the complaints should be upheld, but surely they should be worked through to a decision - upheld or not.

[Nearly Sane]

No - you aren't actually dealing with the real world and what has happened - what has happened is that a Judicial Review has determined the original investigation to be procedurally flawed - the outcome of that should be that the investigation is rerun using procedures that aren't flawed.

You are in the world of speculation about what the inquiry might, or might not, conclude in the future. I am sitting in the real world where we know that the Judicial Review has determined.

The reality is, of course, that this is too politically incendiary and the whole sorry tale is being kicked further and further into the long grass. And while that happens justice is not being served as there has been no determination as to whether the allegations are upheld under the civil balance of probabilities burden of proof.

And it is now pretty well exactly three years since these allegations were received and an investigation opened. In what way is that fair on the claimant who, three years on, still haven't had their complaints dealt with under civil proceedings. I'm not, in any way saying that the complaints should be upheld, but surely they should be worked through to a decision - upheld or not.

No, I'm dealing with the  fact that there is a parliamentary inquiry. Something you seemed unaware of and unwilling to deal with. Something that is not precedented.

[ProfessorDavey]

No, I'm dealing with the  fact that there is a parliamentary inquiry. Something you seemed unaware of and unwilling to deal with. Something that is not precedented.

No you are ignoring the fact that there has been a judicial review which has concluded and given its opinion. What is required now is that the investigation is rerun using procedures that aren't flawed.

It doesn't require a parliamentary inquiry to come up with procedures to investigate allegations of sexual harassment that aren't flawed - organisations do it all the time. The parliamentary inquiry is a complete red herring and irrelevant to the ability of the scottish government to rerun the investigation. The government could set up a new investigation tomorrow if it chose to, but it hasn't. Indeed it could have established a new investigation the moment the criminal case concluded - but it didn't.

[The Accountant, OBE, KC]

No - you aren't actually dealing with the real world and what has happened - what has happened is that a Judicial Review has determined the original investigation to be procedurally flawed - the outcome of that should be that the investigation is rerun using procedures that aren't flawed.

You are in the world of speculation about what the inquiry might, or might not, conclude in the future. I am sitting in the real world where we know that the Judicial Review has determined.

The reality is, of course, that this is too politically incendiary and the whole sorry tale is being kicked further and further into the long grass. And while that happens justice is not being served as there has been no determination as to whether the allegations are upheld under the civil balance of probabilities burden of proof.

And it is now pretty well exactly three years since these allegations were received and an investigation opened. In what way is that fair on the claimant who, three years on, still haven't had their complaints dealt with under civil proceedings. I'm not, in any way saying that the complaints should be upheld, but surely they should be worked through to a decision - upheld or not.

Maybe the Scottish government should co-operate more readily with the Inquiry rather than delaying providing the Inquiry with legal counsel they received. Then the inquiry can be completed and a fair process can be established to look into the complaints by the alleged victims. 

[Nearly Sane]

No you are ignoring the fact that there has been a judicial review which has concluded and given its opinion. What is required now is that the investigation is rerun using procedures that aren't flawed.

It doesn't require a parliamentary inquiry to come up with procedures to investigate allegations of sexual harassment that aren't flawed - organisations do it all the time. The parliamentary inquiry is a complete red herring and irrelevant to the ability of the scottish government to rerun the investigation. The government could set up a new investigation tomorrow if it chose to, but it hasn't. Indeed it could have established a new investigation the moment the criminal case concluded - but it didn't.

I'm ignoring nothing. I'm pointing out that there is a parliamentary inquiry, which you seemed completely ignorant of, and that has an effect, and it would be better to see what happens from that to decide what should happen after it.

You do seem a bit behind the curve on what is happening. 

[ProfessorDavey]

I'm ignoring nothing. I'm pointing out that there is a parliamentary inquiry, which you seemed completely ignorant of, and that has an effect, and it would be better to see what happens from that to decide what should happen after it.

You do seem a bit behind the curve on what is happening.

Did the Judicial Review require there to be a parliamentary inquiry - nope.

Did the Judicial Review request there to be a parliamentary inquiry - nope.

Did the Judicial Review expose multiple failings in the process - nope.

The Judicial Review found the procedure to be unlawful on a single point - that the investigating officer had previous involvement in the case. That is, of course, a big no-no, but no other failings in the process were found. So all that is required is for the investigation to be rerun with a new investigating officer who had not previously had involvement in the case. You don't need a parliamentary inquiry to rectify the failings identified in the judicial review - you merely need a different investigating officer. The parliamentary inquiry is a complete red herring.

[Nearly Sane]

Did the Judicial Review require there to be a parliamentary inquiry - nope.

Did the Judicial Review request there to be a parliamentary inquiry - nope.

Did the Judicial Review expose multiple failings in the process - nope.

The Judicial Review found the procedure to be unlawful on a single point - that the investigating officer had previous involvement in the case. That is, of course, a big no-no, but no other failings in the process were found. So all that is required is for the investigation to be rerun with a new investigating officer who had not previously had involvement in the case. You don't need a parliamentary inquiry to rectify the failings identified in the judicial review - you merely need a different investigating officer. The parliamentary inquiry is a complete red herring.

Why are you asking strawman questions?

If you think a parliamentary inquiry is a red herring to what happens it just illustrates your ignorance of politics and fact.

[ProfessorDavey]

Why are you asking strawman questions?

If you think a parliamentary inquiry is a red herring to what happens it just illustrates your ignorance of politics and fact.

It is a complete red herring to the ability of the outcome of the judicial review to be adhered to. Show me where the judicial review required or requested an inquiry. Show me where the scottish government was unable to comply with the outcome of the judicial review without holding an inquiry.

I am not asking straw man questions - the only thing the Scottish government needed to do to ensure the investigation was fair and unbiased (in the view of the judicial review) was to use an investigating officer who had had not prior involvement in the case. Why does that require an inquiry? It doesn't.

[ProfessorDavey]

If you think a parliamentary inquiry is a red herring to what happens it just illustrates your ignorance of politics and fact.

So let's focus on fact.

Tell me on what grounds the judicial review determined the original investigation to be procedurally flawed. You seem to be ignoring this entirely allowing yourself to drift off into the never, never, longest or long grasses of parliamentary inquiries. Indeed you seem to have convinced yourself that a new investigation somehow cannot proceed until this inquiry concludes - that is complete and utter non-sense. Not proceeding with a new investigation is entirely a political choice, not a requirement, legal or otherwise.

[Nearly Sane]

So let's focus on fact.

Tell me on what grounds the judicial review determined the original investigation to be procedurally flawed. You seem to be ignoring this entirely allowing yourself to drift off into the never, never, longest or long grasses of parliamentary inquiries. Indeed you seem to have convinced yourself that a new investigation somehow cannot proceed until this inquiry concludes - that is complete and utter non-sense. Not proceeding with a new investigation is entirely a political choice, not a requirement, legal or otherwise.

  Holding an actual rerun while the entirety of the validity of what happened is being investigated by parliament and you think that makes no difference?

[ProfessorDavey]

  Holding an actual rerun while the entirety of the validity of what happened is being investigated by parliament and you think that makes no difference?

Providing the rerun follows legally justifiable procedures - absolutely. And, guess what, the judicial review has very helpfully told them what they need to change. They need an investigating officer with no prior involvement in the case - that's it, nothing more - then the procedure will not fall foul of the law.

Surely the government, as an employer, also has a duty to investigate complains promptly and effectively - sure it made an error in the first investigation, but that can and should have been rectified and the investigation rerun. In terms of justice it is frankly appalling that the complainants who came forward with their complaints three years ago have still not seem the process proceed to completion. And I'm in no way prejudging what the outcome would be - perhaps with a new investigating officer the initial investigation wouldn't find that Salmond has a case to answer. And even if it did the formal proceedings might not uphold those complaints on the balance of probabilities. And even if it did Salmond might win on appeal.

That's what should have happened, and should have been instigated as soon as the criminal case concluded.

[Nearly Sane]

Providing the rerun follows legally justifiable procedures - absolutely. And, guess what, the judicial review has very helpfully told them what they need to change. They need an investigating officer with no prior involvement in the case - that's it, nothing more - then the procedure will not fall foul of the law.

Surely the government, as an employer, also has a duty to investigate complains promptly and effectively - sure it made an error in the first investigation, but that can and should have been rectified and the investigation rerun. In terms of justice it is frankly appalling that the complainants who came forward with their complaints three years ago have still not seem the process proceed to completion. And I'm in no way prejudging what the outcome would be - perhaps with a new investigating officer the initial investigation wouldn't find that Salmond has a case to answer. And even if it did the formal proceedings might not uphold those complaints on the balance of probabilities. And even if it did Salmond might win on appeal.

That's what should have happened, and should have been instigated as soon as the criminal case concluded.

You just seem to continually show your ignorance about what is happening. Let's go back to your idea that the Scottish Govt was scared of holding a rerun because of the politics which showed your ignorance of the parliamentary inquiry. You just don't seem to have much knowledge of Scottish politics