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. @KennyFarq is usually a precise and considered writer but he makes a fundamental mistake in this piece by confusing the term âarbitrationâ with âmediationâ. This really matters and gets to the heart of the Salmond Inquiry. Hereâs why: 1/17 https://twitter.com/kennyfarq/status/1321350555835551744">https://twitter.com/kennyfarq...
Kenny states he was âastonishedâ that @jackiebmsp & I were concerned that repeated suggestions of resolution by arbitration from Salmond had been rejected by @scotgov. He writes:
âSuch a course of action would have denied justice to the women involved.â
Heâs quite wrong. 2/17
âSuch a course of action would have denied justice to the women involved.â
Heâs quite wrong. 2/17
Had the government agreed to Salmondâs earlier request to have the complaints dealt with via mediation- when he was first told of the them, Kenny would have been right, the complainers would have denied the chance of justice.
But the of arbitration bid came later. 3/17
But the of arbitration bid came later. 3/17
When the investigation concluded the Permanent Sec signalled the findings would be passed to the police. At that point AS launched the Judicial Review.
On several occasions prior, AS had challenged the lawfulness of the way the complaints were being handled. 4/17
On several occasions prior, AS had challenged the lawfulness of the way the complaints were being handled. 4/17
He suggested that a legally binding arbitration would test whether the way the complaints were being handled was lawful.
This wasnât about reaching an accord with complainers (as heâd attempted to do with offer of mediation earlier) but testing legality of process.
5/17
This wasnât about reaching an accord with complainers (as heâd attempted to do with offer of mediation earlier) but testing legality of process.
5/17
In those pleas for arbitration AS referenced legal opinion of his own Senior Counsel suggesting their view that were he to take it to full Judicial Review then he would win- overturning the investigation, embarrassing the Govt and costing the taxpayer a fortune.
6/17
6/17
Itâs hard to imagine that Government didnât get their own legal advice at that point and were possibly told the same.
So hereâs why Jackie, I and others are concerned about the repeated rejection of arbitration by Scottish Government:
7/17
So hereâs why Jackie, I and others are concerned about the repeated rejection of arbitration by Scottish Government:
7/17
If the govt thought they might lose, they should have gone for Arbitration. It carries the same weight as a Judicial Review but is:
a) far cheaper (i.e. less risky to the public purse if they have to pay everyoneâs fees)
b) held in private.
That last point matters most. 8/17
a) far cheaper (i.e. less risky to the public purse if they have to pay everyoneâs fees)
b) held in private.
That last point matters most. 8/17
Govt battered on with the investigation despite AS calls for arbitration. Had they accepted arbitration, it would have shown unlawfulness privately and govt could have gone back to start and done it properly. As it was they concluded and AS triggered Judicial Review 9/17
With the JR came the AS crowdfunder- and the rampant online speculation as to who the complainers were.
The privacy of arbitration would have kept public knowledge of the complaints and the complainers out of the public domain, remember- it was the conclusion of 10/17
The privacy of arbitration would have kept public knowledge of the complaints and the complainers out of the public domain, remember- it was the conclusion of 10/17
the (unlawful) investigation and referral to the police which triggered the @davieclegg Daily Record splash which broke the story wide open.
Iâm not saying the complaints wouldnât have come to light, they would. But with arbitration the complainers would have been spared 11/17
Iâm not saying the complaints wouldnât have come to light, they would. But with arbitration the complainers would have been spared 11/17
the details being played out in open court and the doubt it cast on them. Case collapsed & they lost any chance of fair hearing for their complaint.
Arbitration would have revealed the unlawful process and perhaps allowed a do-over for the investigation, on lawful terms. 12/17
Arbitration would have revealed the unlawful process and perhaps allowed a do-over for the investigation, on lawful terms. 12/17
At the heart of this the most important people in this whole business, for me, for Jackie and for every member of our committee, are the complainers. The Judicial Review left them exposed and comprehensively let down- denied any future chance of fair hearing.
13/17
13/17
Arbitration would have given them a chance at a do-over- for the investigation to be conducted properly. Instead the Govt, who may well have been advised that they would likely lose, pressed on with the defence of the JR any way. 14/17
What we need to establish now is why? Arbitration made so much more sense, I bet you anything that given the choice, complainers would have chosen private arbitration over public JR if lawfulness in question but Govt still chose costly, hyper-public test of Judicial Review. 15/17
Itâs getting to the point where the govt, and the First Minister will have to demonstrate categorically to committee that they didnât chose Judicial Review, precisely because it was public and because it would bring the complaints to light thereby ending Salmondâs career. 16/17
If they chose JR over arbitration when their own legal advice most probably told them they were on shaky ground at best, then that is certainly what this is starting to look like.
And thatâs huge. 17/17
And thatâs huge. 17/17
