First Minister Swinney Dismisses Demands for Inquiry into Sturgeon Probe

John Swinney has dismissed demands for a public inquiry, to be led by a judge, concerning the management of an investigation into whether Nicola Sturgeon, his predecessor, violated the ministerial code. Ms. Sturgeon was absolved of any code violation by independent advisor James Hamilton in 2021, amidst the controversy surrounding the government’s inquiry into Alex Salmond. Recently disclosed legal counsel, emerging from a distinct dispute regarding freedom of information requests, has prompted opposition MSPs to question the impartiality of the investigation. A civil servant from the Scottish government was assigned to assist Mr. Hamilton and maintained communication with Mr. Swinney. The First Minister stated that this was standard procedure and pertained solely to administrative issues. Both the Conservative and Labour parties advocated for the establishment of a judge-led public inquiry, but Mr. Swinney declared he had “absolutely no intention” of consenting to such a proposal. The origins of this controversy trace back to 2020, when Nicola Sturgeon voluntarily subjected herself to an investigation by an independent advisor, Irish lawyer James Hamilton, to ascertain if she had violated the ministerial code. Her administration had recently lost a civil court case against Alex Salmond, incurring half a million pounds in costs, prompting the First Minister to commission a review of her interactions with her predecessor. Mr. Hamilton eventually determined that Ms. Sturgeon had not infringed the code, though he expressed dissatisfaction that portions of his conclusive report were extensively redacted due to legal considerations. Benjamin Harrop, a member of the public, lodged a Freedom of Information request seeking access to the materials submitted to Mr. Hamilton’s inquiry. The government declined the request, asserting that it did not “hold” the information, as it had been compiled by a distinct “secretariat” operating for Mr. Hamilton. The issue arose because the data had been stored on the Scottish government’s IT servers. Following an appeal by Mr. Harrop, the Information Commissioner, responsible for overseeing FOI legislation in Scotland, determined that the government was, in fact, in possession of the information. Ministers contested this decision and appealed the ruling in court. A panel of three judges swiftly rejected the appeal, doing so without even recessing to deliberate. Mr. Harrop subsequently submitted a new request to review the legal counsel that led ministers to file that appeal – this is the documentation that has now been released publicly. Accessing legal advice is uncommon; it typically stays confidential because legal professionals are less inclined to offer candid, unfiltered assessments if they anticipate their advice will be published in the press. During the Holyrood inquiry, the previous instance the government released legal advice pertaining to the Salmond dispute, revealed highly critical information. Two of the nation’s most senior legal practitioners expressed “dismay” regarding the government’s management of the judicial review initiated by Mr. Salmond, having endured “extreme professional embarrassment” in court. They eventually issued a resignation threat if the case was not conceded. In contrast, this recently disclosed material is comparatively less severe. King’s Counsel James Mure cautioned that, “on balance, the court is more likely than not to refuse the appeal” should judges opt for a “broad approach”. The records further indicate that Ruaraidh Macniven, the director of the government’s internal legal directorate, believed that “in his view this perhaps isn’t a case where ministers should appeal”. Nevertheless, a notable counter-argument was presented by the Lord Advocate, the government’s chief legal advisor, who “indicated that she thought the decision [of the Information Commissioner] should be tested”. Dorothy Bain KC contended that there were “sound arguments” to support the position that the information obtained or produced by Mr. Hamilton’s inquiry was not “held on behalf of Scottish ministers” as per FOI legislation. This perspective was shared by the ministers. Meeting minutes reveal that Mr. Swinney, who was then the Deputy First Minister, was apprehensive that releasing the material “stretched the definitions” of Freedom of Information regulations and that it “needs to be tested” in court. He articulated that merely conceding the case might lead to a “significant shift” in the government’s interpretation of FOI law, and that foregoing an appeal would mean they “lose the opportunity to seek clarification on the points of law”. A further dispute arose concerning the information ministers had supplied to the Information Commissioner early in the proceedings, having asserted that data on its servers was “accessible only to the secretariat” assisting Mr. Hamilton. This assertion proved to be “not strictly accurate”, as certain records were kept on a personal drive accessible to ten other officials, indicating that information security was not as stringent as initially stated. Mr. Mure insisted that ministers rectify the “slightly false impression given by the original submissions” and cautioned that this disclosure also rendered their appeal a “relatively weak case”. The King’s Counsel personally argued the case in the Court of Session, and his assessment of the likelihood of success proved accurate. The disagreement has seamlessly progressed to a new area due to another element of the released legal advice – specifically, the function of the “secretariat” supporting Mr. Hamilton. A Scottish government civil servant was temporarily assigned to assist the Irish lawyer. Mr. Swinney asserts that this constitutes entirely normal procedure and was public knowledge at the time. However, opposition leaders have raised objections regarding the ongoing communication between that civil servant and her superiors within the Scottish government – specifically Mr. Swinney – given her additional capacity as a “liaison”. James Mure’s legal advice indicates that despite potentially being standard practice, it was “somewhat unfortunate that more distance was not enforced” between the secretariat and the government. He noted that certain correspondence he reviewed “suggests a less than arm’s length and independent position”. Labour MSP Jackie Baillie commented that this brought up “huge questions” concerning the investigation’s impartiality, and by extension, for any other inquiries utilizing seconded civil servants. Both she and Conservative leader Russell Findlay have advocated for a judge-led inquiry into the events, a proposition that Mr. Swinney has dismissed. The First Minister enumerated instances of communication between himself, in his capacity as “sponsor” of the Hamilton investigation, and the civil servant. These included tasks such as coordinating communications from opposition MSPs, organizing payment for Mr. Hamilton’s legal counsel, and – rather ironically – managing freedom of information requests. Mr. Swinney emphasized that he had no access whatsoever to any part of Mr. Hamilton’s report until its completion and submission to the government. He further stated that the employee – a career civil servant in a junior position, not a political appointee such as a special advisor – possessed an ”impeccable record and repute”, and that it would be improper to challenge her integrity. The parliamentary debate on Tuesday concluded with somewhat heated exchanges, as Swinney criticized Scottish Labour leader Anas Sarwar for discussing the matter in the media instead of confronting him directly in the Holyrood chamber. Consequently, what is the future trajectory of this rather intricate dispute? Reverting to the initial FOI request, this outcome does not imply that any material will, in fact, be disclosed. Theoretically, the loss of the appeal indicated that ministers were expected to re-evaluate the initial application. However, they possess the option to utilize numerous other escape clauses within FOI regulations – referred to as “exemptions” – to either deny disclosure or to heavily redact the documents