Scottish Government Faces Scrutiny Over Legal Advice Disclosure

The Scottish government has drawn criticism for its opposition to a Freedom of Information Request (FOI) concerning Nicola Sturgeon’s actions during the Alex Salmond inquiry. Scottish Information Commissioner David Hamilton stated that ministers pursued legal proceedings against his department, notwithstanding “limited prospects of success and the associated impact on public funds”. The oversight body additionally condemned a purported “misrepresentation” of its stance to the press and the standard of submissions provided by ministers. First Minister John Swinney asserted that the government’s actions were rational and consistent with legal counsel. The commissioner’s censure is the culmination of a complex series of events stemming from an investigation conducted by the independent adviser on the ministerial code, Irish lawyer James Hamilton. In 2021, Mr. Hamilton examined whether Sturgeon had provided inaccurate information to MSPs regarding the timing of her meeting with Alex Salmond’s chief of staff, following harassment accusations against Salmond. Salmond had been acquitted of sexual assault charges in a criminal trial. The lawyer exonerated Sturgeon of violating the ministerial code, yet conveyed disappointment that his report had undergone significant redaction. Subsequently, a member of the public filed an FOI request, seeking the Scottish government to release all evidence collected during the inquiry. The government declined this request, claiming it did not possess the information, which led to an appeal to the information commissioner. The commissioner determined that the government did, in fact, possess the information. In a notably uncommon action, the government subsequently challenged that ruling in the Court of Session in December 2023, and was unsuccessful. The legal proceedings reportedly incurred costs of nearly £30,000 for the information commissioner’s office, an amount the government is obligated to reimburse. Following this, a member of the public submitted another FOI, requesting the legal counsel provided to the government concerning its choice to appeal the previous decision. The government denied this request, prompting a further appeal to the information commissioner. Ministers contended that disclosing the information was not in the public interest, asserting it was protected by legal professional privilege. The commissioner dismissed that contention and set a deadline of 26 October for ministers to disclose the requested information. The government complied, but only at what the commissioner termed “the 11th hour”. Mr. Hamilton, who supervises FOI legislation in Scotland, stated that his review of the information revealed it was “disappointing” that ministers persisted with the case despite explicit legal advice indicating they were “more likely than not” to lose. He also conveyed exasperation regarding the duration ministers took to release the information. Mr. Hamilton commented: “I was deeply disappointed in the tone of the media statement accompanying the disclosure, which, in my view, misrepresented the facts.” He added that the statement implied ministers possessed a “stateable case,” but that this did “not a true or transparent reflection of advice received.” The commissioner further stated: “Ministers’ chances of success diminished considerably over time and attempts to present this otherwise are not what I would expect from a public authority.” He additionally highlighted “factual discrepancies” within the initial submissions provided to his office. “Had more care been taken in compiling arguments when my office sought submissions, a failed appeal to the Court of Session, delay to the requester and the significant impact on the public purse may have been avoided,” Mr. Hamilton remarked. He concluded that the situation was “out of character” compared to the government’s other FOI engagements. The disclosed legal advice indicated that KC James Mure had cautioned ministers that “on balance, the court is more likely than not to refuse the appeal” should judges opt for a “broad approach.” The records further demonstrate that Ruaraidh Macniven, director of the government’s internal legal directorate, believed that “in his view this perhaps isn’t a case where ministers should appeal.” Nevertheless, Lord Advocate Dorothy Bain, the government’s principal legal adviser, “indicated that she thought the decision [of the Information Commissioner] should be tested.” In a parliamentary address delivered three days subsequent to the legal advice’s release, Swinney declared that the choice to pursue court action was “perfectly rational,” grounded in the counsel ministers had received. He asserted that allegations of the government proceeding to court contrary to legal advice had been “disproved.” Scottish Conservative finance spokesperson Craig Hoy commented: “This reeks of SNP secrecy and cover-up. Taxpayers whose money has been wasted on this cynical action deserve full transparency.”