The Scottish Government received a warning regarding the lack of distance between Ministers and civil servants in the independent inquiry into whether Nicola Sturgeon broke the Ministerial code.
Nicola Sturgeon had referred herself to James Hamilton, the independent adviser on the ministerial code, following allegations that she misled Holyrood regarding the investigation of harassment complaints against her predecessor, Mr. Salmond.
Legal advice obtained by the Scottish Government for the appeal against releasing evidence submitted to Mr. Hamilton’s inquiry has been made public. The Government initially refused to release the evidence, claiming it was not in their archives. However, concerns were raised about the lack of separation between Ministers, civil servants, and the inquiry, which could weaken the case.
Lawyers expressed concerns that arguing the Scottish Government couldn’t access documents it claimed it did not hold would be difficult. The advice highlighted risks in fighting the legal battle, as a defeat could set an adverse precedent for future Freedom of Information requests.
The release of evidence under FOI laws was initially blocked by the Government, but the Information Commissioner ordered its disclosure, which was later upheld by the Court of Session after a Government appeal. Subsequently, a freedom of information request was made for the legal advice related to the decision to appeal, which was published on the Scottish Government’s website.
The legal advisors warned of presentational risks for Ministers and the potential for setting precedent if the appeal failed. They advised Ministers to improve information handling and staffing when external advisors are involved.
SNP ministers have been in a three-year legal battle to withhold documents related to Sturgeon’s conduct during the Salmond inquiry, prompting criticism from the Scottish Information Commissioner.
The Scottish Government stated that the legal advice confirmed reasonable prospects of success in appealing the decision. The Lord Advocate, the senior government legal adviser, supported the decision to appeal after discussions with Ministers.
The decision to comply with the Commissioner’s ruling and release the legal advice was made carefully and does not set a legal precedent. The material reflects thorough deliberation by the Scottish Government on the complex matter of FOI law.