THERE are questions about whether the probe into Nicola Sturgeon and the ministerial code was ever truly independent, SNP figures have said.
The Scottish Government is also facing calls for a new investigation into whether the former SNP leader breached the code.
It comes after the publication of legal advice on whether the Government should appeal a ruling that they had to publish evidence from the initial probe, which was led by James Hamilton and concluded Sturgeon did not breach the code.
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.
The SNP Government had initially refused to publish evidence given to that investigation, saying it was not “held” by them, but by Hamilton.
However, the legal advice published on Saturday after a Freedom of Information battle showed that there had been a “somewhat lax approach to access permissions” and that some Government officials could also have accessed the evidence.
The legal advice further showed that opinion was split on whether the SNP Government could win an appeal. While some experts, including the Lord Advocate, thought “the balance is in favour of appealing”, others, including director of legal services Ruaraidh Macniven, advised against it.
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The publication of the legal advice has led to criticism of the Scottish Government, including from within the SNP.
In a joint statement, party stalwarts Fergus Ewing and Joanna Cherry said: “These revelations show that the Scottish Government chose to spend huge amounts of money in pursuing a court appeal which their Counsel and head of legal services advised they were likely to lose.
“And these documents contain an admission that the Government misled the Commissioner by making a false assurance to him about access to the documents.
“This all suggests that the Scottish Government have been using the courts and massive amounts of taxpayers cash on lawyers fees, to delay the release of this material.”
The pair added: “The revelation that the civil servant who provided the secretariat to the inquiry, was at the same time continuing to brief and advise Scottish Government ministers about the investigation, calls into question whether this was ever an independent inquiry at all.”
Information Commissioner David Hamilton said: “I welcome [the] Scottish Government complying with my direction, albeit at the 11th hour.
“We have now learnt that Scottish Ministers were advised that prospects of winning this appeal were ‘not strong’ and indeed diminished as advice developed. It is therefore frustrating to know that my scarce resources were absorbed in an appeal that advisers pointed out was not the one to test the particular legal argument being deployed.
“The applicant’s request for information to which this appeal related was delayed for two and a half years which is wholly unacceptable and as a result the substantive information initially requested still remains under investigation.
“I will be corresponding with the Permanent Secretary to share these and further concerns.”
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Scottish Labour deputy leader Jackie Baillie said: “It is right that this pathetic attempt to pass the buck on the Scottish Government’s complicity in the misconduct of Nicola Sturgeon is now in the public eye.
“It is clear that Ministers lied when it came to what information they could disclose and ignored legal advice not to appeal – racking up more legal bills paid for by the taxpayer so they could try the truth.
“This is more evidence of a culture of secrecy and cover-up that rots at the heart of the SNP.”
The LibDems and Scottish Tories also released statements, accusing the SNP Government of aiming to “string out the process as long as possible” and of “wasting public money”.
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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