INVESTIGATION

POLICE Scotland chief constable Phil Gormley is at loggerheads with the Scottish Government after his lawyer accused Justice Secretary Michael Matheson of blocking his return to work.

Documents reveal that Gormley, who is on leave over bullying claims, had the unanimous backing of the Scottish Police Authority board to resume his duties last month.

However, Gormley's legal representative claimed the move was halted after an intervention by Matheson and suggested the Government’s actions may have been "unlawful".

He added that Gormley, the country’s top police officer, reserved the right to challenge any decision through a judicial review.

Labour MSP Jackie Baillie last night described the revelations as “astonishing” and criticised Matheson for his “direct interference”.

Gormley, who started as Police Scotland chief constable last year, went on “special leave” in September after bullying allegations were made against him.

Since going off work, multiple complaints about his conduct have been made, all of which he strenuously denies.

The SPA, which is the national oversight body for the force, has extended his period of absence while the Police Investigations and Review Commissioner (PIRC) carries out its investigations.

However, an extraordinary series of letters and emails, obtained by the Sunday Herald, reveals a breakdown between Gormley and the Scottish Government, which in the past has been accused of meddling in the SPA.

Picture: Michael Matheson

On November 8, outgoing SPA chief executive John Foley informed Gormley by letter that he could come back to work.

Foley wrote that the Board had decided to “rescind” the leave period and added that it would be “beneficial if you return to duty as soon as practicable”.

Gormley had indicated a willingness to return on November 10 and Foley stated: “I would like to take this opportunity to advise you that your return to full duties has the unanimous backing of the Board of the Scottish Police Authority. I would be grateful if you could advise by return of your intention, or otherwise, to resume your full duties as Chief Constable on Friday 10 November 2017.”

A draft SPA press release, also obtained by this newspaper, was prepared on the subject of Gormley’s imminent return.

“The Scottish Police Authority (SPA) has today confirmed that the Chief Constable of Police Scotland, Phil Gormley QPM, will return to his full duties and responsibilities from tomorrow,” it stated.

“Mr Gormley has now confirmed to the Chair of the SPA, Andrew Flanagan, that he has had sufficient time to prepare himself for the conduct allegations made against him at this time, and that he is ready and fit to return to work.

“Having previously agreed that a period of leave was an appropriate measure to address the investigative and welfare issues for all parties involved, the Board of the SPA has agreed that it is now in the interests of the service, the public, and best value that he take up his duties as quickly as practicable.”

However, the press release was never issued and Gormley did not come back to work.

On November 14, lawyer David Morgan, who is representing Gormley, contacted Flanagan, at that point SPA chair.

“My client was pleased with the decision of the Board but concerned that his return was delayed following intervention by the Cabinet Secretary for Justice,” he wrote.

“I have advised my client that any intervention by the Scottish Ministers to reverse the Board's decision is ultra vires and unlawful. This decision is solely a matter for the SPA, as the statutory body tasked with the operational deployment of my client as Chief Constable.”

He warned: “In the meantime, I must reserve my client's legal rights to challenge any failure to implement the Board's decision by way of application for judicial review should this be necessary.”

Image 1: SPA letter confirming "unanimous" backing for Gormley to come back to work

Image 2: "draft" SPA press release confirming Gormley's return

On November 28, with Gormley still on leave, the chief constable’s lawyer wrote directly to Matheson: “This unanimous decision of the SPA Board is a matter of record and, despite recent press reports, it was not a unilateral decision of the current Chair, Andrew Flanagan. My client was therefore surprised to have been informed late on the afternoon of 9 November that, following your apparent intervention, he should not report back to work, despite the Board's unanimous decision.”

He added: “I understand that the suggestion was that the views of the Scottish Government ought to have been sought by the SPA, along with those of the PIRC. I have advised my client that there is no lawful basis for Scottish Government's intervention or interference with the lawful decision of the SPA, as the sole statutory body tasked with the operational deployment of the Chief Constable.”

At a meeting of Holyrood’s Public Audit and Post-legislative Scrutiny (PAPLS) Committee last week, senior Scottish Government civil servant Paul Johnston told MSPs that Flanagan, who is no longer in post, was of the view that it “may” have been suitable for Gormley to return to work.

Johnston’s evidence prompted Gormley to instruct his lawyer to write to the committee.

In his letter to PAPLS, Morgan wrote that Gormley had maintained a “dignified public silence”, but noted: “Despite the clear and unanimous decision of the SPA Board, my client's return was postponed on the afternoon of 9 November 2017. My client was travelling back to Scotland in order to resume his duties when he was contacted by the former Chair of the SPA, Andrew Flanagan, and told not to continue the journey. My client was told that this followed a meeting between Andrew Flanagan and the Cabinet Secretary for Justice earlier the same afternoon.”

He added: “The publicly reported assertion by the Director General [Johnston] that the Scottish Government's involvement was to require that ‘due process’ is followed accordingly needs further examination given the circumstances described above.”

Picture: Baillie

Baillie, Acting Convener of PAPLS, said: “Not only does it appear that a senior civil servant has withheld information from the Public Audit Committee, even more damning is the direct interference of the Cabinet Secretary for Justice.

“For Michael Matheson to intervene and completely contradict a unanimous decision of the Scottish Police Authority is unprecedented. It is little wonder the SPA is in such a mess if the Cabinet Secretary and his civil servants are making all the decisions.

“The SPA was set up to ensure that decisions about policing were kept at arms length from Ministers, but that has been recklessly trampled over by the Cabinet Secretary. His judgement is clearly called into question and he appears to have acted out with his powers. Matheson needs to urgently clarify his actions and the extent of his involvement in the decisions of the SPA.”

Asked if Matheson had intervened to stop Gormley from returning to work, a Scottish Government spokesperson said: “The SPA Board has kept the position of the Chief Constable under review on a four weekly basis while an investigation into complaints is conducted by the PIRC. It is entirely appropriate for the Scottish Government to seek assurances that due process is being followed by the Board.

“As was made clear at this week's Audit Committee, the Scottish Government sought assurances that decisions by the SPA were being made on a fully informed basis including seeking the views of the Police Investigations and Review Commissioner.”

Unprompted, an SPA spokesperson said the body understood this newspaper was working on a story about Gormley and the Board.

The SPA spokesperson provided a comment that had been issued last week from new chair Susan Deacon: "Since taking up my post as SPA Chair less than three weeks ago, I have become increasingly concerned about the way in which some previous Board decisions have been taken and have conveyed my concerns to Board members.

"I have taken early steps to develop Board decision making and to improve SPA governance, including setting up a Complaints and Conduct Committee, and have given a public commitment to make further improvements at an early date.”