JUDGES have thrown out the Scottish Government’s appeal against an order to disclose all written evidence gathered during an independent investigation into whether Nicola Sturgeon breached the ministerial code – but it may not yet have to publish the information.
The Court of Session ruled on Wednesday that the documents requested were in fact “held” by the Scottish Government – despite it refusing a Freedom of Information (FoI) request to publish them on grounds that it did not.
Acting for Scottish ministers, James Mure KC told the Court of Session on Wednesday that any written evidence gathered by an independent adviser during his investigation into the former first minister ought to be kept under wraps, in response to a challenge from the Scottish Information Commissioner (SIC).
The body ruled in January this year that ministers were wrong to state the information requested by Benjamin Harrop using FoI legislation was not “held” by them and instructed them to carry out a review.
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Sturgeon referred herself to independent adviser James Hamilton in 2019 over concerns she failed to record meetings and phone calls she had with her predecessor Alex Salmond and his former chief of staff after he was the subject of complaints from two civil servants.
Hamilton investigated and issued a report in March 2021 in which he determined Sturgeon did not breach the code.
Harrop asked Scottish ministers two weeks later to be provided with all written evidence gathered by Hamilton during his investigation.
Ministers declined to hand over the information on two occasions, prompting Harrop to seek a review by the SIC.
The Government appealed against the SIC’s ruling that there ought to be a review of their initial responses, arguing the commissioner took “too technical” an approach to the word “held”.
Ministers also argued that any disclosure of the written evidence would be detrimental to Hamilton’s independence as an adviser.
Mure told judges that the Scottish Government stored information gathered by Hamilton “purely on his behalf” and only his final report was ever meant to be published.
He told the court: “The report of his findings is the only document that ministers are entitled to receive from the adviser, and the first minister – or, in the present case, the deputy first minister – had no right or interest to seek the information which may be contained in the written evidence provided to Mr Hamilton (below).
“It is, in my submission, clear that the information is held on behalf of Mr Hamilton, that the ministers have no control over it, and it remains either stored by Mr Hamilton or stored on his behalf in a Government IT system. It remains in the control of Mr Hamilton.
“That means only the independent adviser has access to that information, only he knows what it comprises, and the adviser has no obligation to release that evidence to the Scottish ministers.
“At the end of the day, what the deputy first minister receives is the findings and that is all that Mr Hamilton was asked to provide, all that ministers have a right to receive, and that, of course, has been published.”
Colin Sutherland, known as Lord Carloway, the lord president of the Court of Session, said judges were satisfied that ministers did in fact “hold” the information requested, adding that written reasons for the ruling would be published in due course.
The Scottish Government will have to reconsider Harrop’s initial FoI request. They may still decline to publish the information under other aspects of the law, but they will not be able to claim that they do not hold it.
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