Scottish Government delay over publishing Nicola Sturgeon legal advice 'wholly unacceptable'
The Scottish Information Commissioner (SIC) has launched a scathing assessment of ministers, describing a two-and-a-half-year delay to publish long-awaited legal advice as “wholly unacceptable”.
The statement was issued after ministers took the SIC to court after they were ordered to release evidence given to an inquiry into Nicola Sturgeon.
Advertisement
Hide AdAdvertisement
Hide Ad

The Government was initially told it had a “reasonable prospect of success” in its legal battle with the country’s transparency watchdog, documents released on Saturday showed, but those prospects were later “downgraded”.
In a statement published to X, SIC David Hamilton welcome the publication of the legal advice, “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,” he said.
“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.
Advertisement
Hide AdAdvertisement
Hide Ad“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.”
In April 2021, a Freedom of Information (FOI) request was made to obtain all the evidence submitted to the James Hamilton probe into whether Ms Sturgeon breached the ministerial code when she was first minister.
Ms Sturgeon had referred herself to Mr Hamilton – the independent adviser on the ministerial code – 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.
Advertisement
Hide AdAdvertisement
Hide AdThe Government argued it did not hold the information, claiming it was in a restricted part of its information management system as a result of Mr Hamilton’s inquiry.
Eventually, the Information Commissioner ordered ministers to divulge the information, with the Court of Session subsequently rejecting a Government appeal against the decision.
Another FOI request was then submitted for the legal advice relating to the decision to appeal.
Through the same process, the Information Commissioner ordered the Scottish Government to publish the advice, despite the ministerial code saying such a move was not normally taken.
Advertisement
Hide AdAdvertisement
Hide AdThe Scottish Government released the information on Saturday morning in a 101-page document of emails and legal opinions relating to the decision. It showed that lawyers thought the argument by ministers they did not “hold” the information was “weak”.
The document stated: “Counsel considers the prospects of success at appeal to be reasonable, but that there are significant presentational risks for ministers.”
It also said that a second opinion “downgraded” the likelihood of success, but the Lord Advocate said the option to appeal remained “open” to ministers.
The Scottish Government said the document showed it took the decision to appeal over the Information Commissioner’s ruling based on “appropriate analysis of legal considerations”.
Advertisement
Hide AdAdvertisement
Hide AdA spokesperson said: “The decision to comply with the Commissioner’s decision and release the legal advice has been taken after careful consideration and does not set any legal precedent.
“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’.
Advertisement
Hide AdAdvertisement
Hide Ad“The material reflects the thorough deliberation the Scottish Government gave to this matter.”
However, Alba MP Neale Hanvey was highly critical of the Government, posting to social media: “It is beyond disgraceful that scarce public funds have been squandered for no good reason, and potentially to impede reasonable public scrutiny or defeat proper investigation of alleged misconduct and misfeasance in public office.
“The Scottish Government should ensure the Information Commissioner’s offices are compensated for all associated costs as a gesture of good will and there must be no further obfuscation of the facts. It’s time transparency was properly provided through a wholly independent investigation and those involved held to account fully and publicly.”
Former SNP health secretary Alex Neil posted to X: “Those responsible for this betrayal of the founding proof the Scottish Parliament should be forced to resign.”
Comments
Want to join the conversation? Please or to comment on this article.