The Scottish Government is lodging an appeal against a decision that states they were wrong in failing to provide information about an investigation into alleged bad behaviour by former first minister Alex Salmond.
The case, “Scottish ministers against a decision of the Scottish Information Commissioner”, will be heard at the Court of Session on Wednesday.
Nicola Sturgeon referred herself to the independent advisers on the Scottish Ministerial Code for an alleged breach on January 13, 2019, while she was first minister.
That was said to concern whether she failed to record meetings and phone calls in accordance with the code, and/or attempted to influence the conduct of the internal investigation into Salmond’s behaviour.
An independent adviser, James Hamilton, investigated and determined that Sturgeon had not breached the code.
Ministers declined a request under the Freedom of Information (Scotland) Act 2002 for all written evidence gathered by Hamilton’s investigation on the basis that he was independent of them, and on an exemption contained in the act that disclosure would cause prejudice to the effective conduct of public affairs.
Last year, the Scottish Government appointed a group of external investigators to handle complaints about current and former ministers, following the mishandling of its investigation into claims of sexual harassment by Salmond.
The government’s investigation into the former first minister was successfully challenged in the courts, which prompted a lengthy inquiry at a Holyrood committee.
Following a review of the government’s complaints procedure, new rules around formal complaints of bullying, harassment and discrimination made by civil servants were introduced in February.
The government wrote to the Scottish Parliament’s Finance Committee, updating MSPs on the new system’s progress.
What was Sturgeon accused of?
Sturgeon was accused of misleading parliament and failing to record meetings connected to harassment allegations levelled at Salmond, her predecessor.
An inquiry carried out by the independent code adviser – James Hamilton QC – ruled in 2021 there had been no breach of the code.
Had Sturgeon been found to have knowingly broken the rules, she would have been expected to offer her resignation less than two months before that year’s Holyrood election.
She referred herself to Mr Hamilton following Salmond’s successful legal challenge of the Scottish Government’s unlawful investigation into harassment complaints against him, which led to Salmond winning more than £500,000 in court.
Salmond was later acquitted of 13 charges, including sexual assault, indecent assault and attempted rape, in March 2020 following a High Court trial.
What did Hamilton’s report find?
Mr Hamilton concluded in his report that Sturgeon did not breach the ministerial code in respect of any of the four issues he considered.
These included an allegation that her “failure to record her meetings with and telephone discussions with Salmond and others” in March, April, June and July 2018 was a breach and that the first minister “may have attempted to influence the conduct of the investigation” into harassment complaints made against Salmond.
The third issue centred on whether Sturgeon misled the Scottish Parliament in relation to the meetings in 2018, and the fourth alleged that Sturgeon was in breach of her duty to comply with the law in relation to Salmond’s successful legal challenge against the Scottish Government.
Mr Hamilton’s inquiry also looked into Sturgeon’s failure to refer to the meeting of March 29, 2018 in a later statement to the Scottish Parliament.
She met with Salmond’s adviser Geoff Aberdein on this date, where he asked her to meet with Salmond.
Discussing this, Mr Hamilton’s report says: “It is regrettable that the first minister’s statement on January 8, 2019, did not include a reference to the meeting with Mr Aberdein on March 29.
“In my opinion, however her explanation for why she did not recall this meeting when giving her account to parliament, while inevitably likely to be greeted with suspicion, even scepticism by some, is not impossible.
“What tilts the balance towards accepting the first minister’s account for me is that I find it difficult to think of any convincing reason why if she had in fact recalled the meeting she would have deliberately concealed it while disclosing all the conversations she had had with Mr Salmond.”
The Scottish Information Commissioner’s verdict
Scottish ministers were asked for all written evidence to James Hamilton’s investigation into Sturgeon’s conduct under the ministerial code.
The authority argued that it did not hold some of the information and that the information it did hold was exempt from disclosure.
The commissioner investigated and found that ministers had failed to identify all of the information held by it, which fell within scope of the request.
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