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by Louise Wilson
06 December 2023
Scottish Government loses appeal to keep evidence in Nicola Sturgeon ministerial code investigation secret

Nicola Sturgeon was cleared of breaching the ministerial code in March 2021 | Alamy

Scottish Government loses appeal to keep evidence in Nicola Sturgeon ministerial code investigation secret

Judges have thrown out an attempt by Scottish ministers to keep information it holds on an investigation into whether former first minister Nicola Sturgeon breached the ministerial code secret.

The Scottish Government was appealing a decision by the Scottish Information Commissioner which asked it to reconsider a freedom of information request for evidence gathered as part of that investigation.

Sturgeon was ultimately cleared of breaching the ministerial code by independent advisor James Hamilton in March 2021, with the full report also published at the time.

But an FOI request submitted shortly after the investigation's conclusion sought the publication of all evidence gathered by Hamilton.

Ministers had argued they did not hold the information requested because Hamilton was acting independently of government, but the Information Commissioner had said this was too narrow a definition of ‘hold’.

Delivering the ruling immediately after arguments were made by counsel in the Court of Session, Lord Carloway said: “The court is satisfied that the information involved was held by the Scottish ministers in terms of the statute and we will therefore refuse this appeal.”

A full explanation of the ruling will be published in due course.

It means Scottish ministers will have to reconsider the original freedom of information request, which may result in the investigation’s evidence being put into the public domain. However, ministers may refuse the request or redact significant sections of the information on other grounds.

Hamilton’s investigation was instigated after Sturgeon made a self-referral under the Scottish ministerial code following suggestions she had breached it by failing to properly record meetings and phone calls with Alex Salmond.

Those meetings took place between March and July 2018 and related to allegations of sexual misconduct made after Salmond. Salmond was cleared of all charges in March 2020.

While Hamilton’s final report was published in March 2021, the evidence gathered as part of his investigation was not.

The government’s lawyer James Mure KC argued this evidence is “held by [Hamilton] or is held by the Scottish Government solely on behalf of Mr Hamilton” and therefore is not within the scope of the Freedom of Information (Scotland) Act.

Mure added: “The information was for Mr Hamilton to seek, to receive, to consider, to control, to store, to use purely at his discretion… The information is gathered so that the adviser can do his job. He’s not performing a function of the first minister, he’s performing his own independent function in providing only advice.”

But the counsel for the Information Commissioner, David Johnston KC, said this definition of the word ‘hold’ is “wholly unrealistic [and] wholly unworkable” and therefore called for the appeal to be refused.

He said the information is held within Scottish Government document management systems and Hamilton was “expressly instructed” to gather that information by ministers.

He added: “There is nothing in Mr Hamilton’s terms of appointment or remit that restricts the Scottish ministers’ access to the information.”

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