Judges have refused an appeal by Scottish ministers to keep evidence gathered during an investigation into whether Nicola Sturgeon breached the ministerial code under wraps.
Lord President of the Court of Session, Colin Sutherland, said the court is “satisfied” ministers are in a position to provide the information sought, and he rejected the appeal on Wednesday.
The ruling came after James Mure KC had argued any written evidence gathered by an independent adviser tasked to investigate the former first minister should be kept private in response to a challenge from the Scottish Information Commissioner (SIC).
The body ruled in January this year that ministers were wrong to state the information requested by Benjamin Harrop using freedom of information legislation was not “held” by them and instructed them to carry out a review of their response.
Sturgeon referred herself to independent adviser James Hamilton in 2019 over concerns she failed to record meetings and phone calls she had with her predecessor Alex Salmond and his former chief of staff after he was the subject of complaints from two civil servants.
Mr Hamilton investigated and issued a report in March 2021 in which he determined Sturgeon did not breach the code.
Mr Harrop asked Scottish ministers two weeks later to be provided with all written evidence gathered by Mr Hamilton during his investigation.
They declined to hand over the information on two occasions, prompting Mr Harrop to seek a review by the SIC.
Ministers then appealed against the SIC’s ruling that there ought to be a review of their initial responses, arguing the commissioner took “too technical” an approach to the word “held”.
They also argued any disclosure of the written evidence would be detrimental to Mr Hamilton’s independence as an adviser.
Mr Mure told judges on Wednesday the Scottish Government stored information gathered by Mr Hamilton “purely on his behalf” and only his final report was ever meant to be published.
He told the court: “The report of his findings is the only document that ministers are entitled to receive from the adviser, and the first minister – or, in the present case, the deputy first minister – had no right or interest to seek the information which may be contained in the written evidence provided to Mr Hamilton.
“It is, in my submission, clear that the information is held on behalf of Mr Hamilton, that the ministers have no control over it, and it remains either stored by Mr Hamilton or stored on his behalf in a Government IT system. It remains in the control of Mr Hamilton.
“That means only the independent adviser has access to that information, only he knows what it comprises, and the adviser has no obligation to release that evidence to the Scottish ministers.
“At the end of the day, what the deputy first minister receives is the findings and that is all that Mr Hamilton was asked to provide, all that ministers have a right to receive, and that, of course, has been published.”
David Johnston KC, for the SIC, suggested ministers arguing information was not held or could not be provided because it was in the hands of others could have a damaging effect on transparency in future.
Hr told the court: “If that is a valid restriction, it clearly undermines the efficacy of the Freedom of Information Scotland Act. It would be a major inroad on freedom of information.”
But the Lord President concluded: “We will give reasons for our decision in writing in early course but, in short, the court is satisfied that the information involved was held by the Scottish ministers in terms of the statute, and we will therefore refuse this appeal.
“Obviously, the Scottish ministers will wish to consider whether any exemptions apply to any of the information which is subsequently made available.”
Scottish Conservative MSP Murdo Fraser said: “This is a humiliating defeat for the SNP Government, whose defence that they don’t hold key information about the ministerial code investigation into Nicola Sturgeon has been rejected by Lord Carloway.
“Ministers should now do the right thing and publish in full all the relevant information.
“This shabby episode is the latest example of the SNP’s addiction to secrecy and aversion to accountability. They have spent a small fortune of taxpayers’ cash on trying to defend a cover-up.
“This growing trend of public money being squandered on failed legal cases pursued in the SNP’s political interest – which also includes the Salmond judicial review and the Supreme Court indyref case – has to stop.”
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