THE Scottish Government has published legal advice it was given relating to the independent probe into whether former first minister Nicola Sturgeon broke the ministerial code.
The 101-page document collates emails and legal opinions relating to the investigation conducted by James Hamilton, the former director of public prosecutions in the Republic of Ireland, which ultimately concluded that Sturgeon did not breach the ministerial code.
It deals with whether the Scottish Government should or should not appeal against a ruling requiring it to publish evidence given to Hamilton's inquiry.
The background
Sturgeon had submitted herself to the Hamilton probe in response to allegations she had misled Holyrood in relation to the inquiry into the botched investigation of harassment complaints against her predecessor Alex Salmond.
In April 2021, a Freedom of Information request was made in an attempt to obtain all evidence submitted to the Hamilton inquiry.
In what would become a key point, the Government argued that it did not hold the information – Hamilton did.
Another Freedom of Information request was then submitted for the legal advice relating to the decision to appeal.
On Tuesday, the Scottish Government committed to providing the applicant with the legal advice by the October 26 deadline after an order from the Information Commissioner – despite the ministerial code saying such a move is not normally taken.
That legal advice has now been published on the Scottish Government’s website.
The legal advice
The published legal advice shows a divide among senior advisers, who said variously that there were reasonable grounds to challenge the ruling, and that the “prospects for this case are not thought to be particularly good”.
A summary of senior advice from one KC states: “Overall, Counsel considers that there are reasonable prospects of success in an appeal.
“He notes that the Commissioner’s decision has not addressed all of the points made by the Scottish Ministers and that the Commissioner’s reasoning is somewhat superficial and fails to engage with the submissions made to him.”
Elsewhere, it notes that the Lord Advocate, the chief law officer, “considers that the balance is in favour of appealing”.
However, it is noted that the Scottish Government did not follow the advice of their director of legal services, Ruaraidh Macniven, in choosing to appeal against the decision.
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An email to the Lord Advocate and other top law officers, the sender of which was redacted, states: “Ruaraidh had been in touch to say that in his view this perhaps isn’t a case where Ministers should appeal, on the back of the further information provided and Counsel’s revised advice.
“He thinks we should wait for another case where there are better circumstances. He thinks our position appears counterintuitive given we did hold information on our servers and given there was apparently not strict separation between the roles. He would be minded not to encourage Ministers to appeal in this case.”
A note quoting the Scottish Government’s Legal Directorate states elsewhere: “If it does [appeal], we consider that on balance the court is more likely than not to refuse the appeal and thus to leave the information request to be determined by reference to the various exemptions that may apply.”
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Emails further show there were concerns about the consequences of allowing the information to be published. Doing so could open any sensitive information on government servers up to Freedom of Information requests, it was feared.
One document states: “In additions to concerns about the potential disclosure of highly sensitive information, Scottish Government officials are also extremely concerned about the implications of the decision in terms of the ability of appointed advisers to conduct an independent investigation under the Ministerial Code, as well as any other historic or future individual appointments made by the Scottish Ministers for similar functions, such as chairing public inquiries.”
There were also concerns that whether the Scottish Government held the information in question or not could be undermined by the “somewhat lax approach to access permissions”.
The documents further show that senior legal counsel raised concerns of “a lack of proper separation between the ongoing work of Ministers and civil servants, and the need for a scrupulously independent secretariat”.
You can find the full legal advice on the Scottish Government website.
What are the Scottish Government saying?
After the publication of the advice on Saturday, the Scottish Government issued a statement saying that the decision to release it had been agreed by the Lord Advocate had "been taken after careful consideration and does not set any legal precedent".
A spokesperson went on: “The material shows Scottish Ministers took decisions based on appropriate analysis of the legal considerations. This included discussions with the Lord Advocate, who was content that there were proper grounds for appealing and who agreed with Ministers that the decision should be appealed.
“This was a complex and intricate point of FOI law, which the Court of Session’s judgement recognised as addressing a ‘sharp and important question of statutory interpretation’.
"The material reflects the thorough deliberation the Scottish Government gave to this matter.”
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