SNP ministers told to release secret legal advice around Sturgeon investigation

SNP ministers will be required to release legal advice relating to a court case around the Alex Salmond harassment controversy after a ruling from the Scottish Information Commissioner - branded a “humiliating rebuke” by opponents.

The Scottish Information Commissioner had previously ruled that information relating to James Hamilton’s investigation into former first minister Nicola Sturgeon under the ministerial code was held by the Scottish Government and should therefore be considered by it when responding to freedom of information (FOI) requests. 

Nicola Sturgeon. Photo: Getty

This decision was appealed to the Court of Session in March 2023, with the court finding in favour of the commissioner in December 2023. 

The commissioner has now issued that legal advice should be disclosed, with certain personal information redacted.

Scottish Conservative MSP, Murdo Fraser, said: “This is a pretty humiliating rebuke to the SNP Government from the Information Commissioner.

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 “Secrecy has been the hallmark of the actions of government officials throughout the Salmond controversy and the commissioner believes their latest attempt to suppress the publication of legal advice was unjustified.

“The public may not follow every legal twist in this long-running saga but they can see an SNP Government with an ongoing aversion to transparency – and they are entitled to ponder why that might be.”

In December 2023, judges threw out an attempt by the Scottish Government to halt the publication of details about an inquiry into whether Nicola Sturgeon broke the ministerial code.

SNP ministers argued  they did not hold the information after receiving a freedom of information request, but the Court of Session in Edinburgh rejected this argument.

It believed the Information Commissioner, which said this was a "wholly unrealistic" position. 

The case revolves around the inquiry by the independent advisor on the ministerial code by lawyer James Hamilton.

In 2021, Mr Hamilton considered whether Ms Sturgeon misled MSPs about when she met Alex Salmond's chief of staff following harassment allegations made against Mr Salmond.

Mr Salmond had been cleared of all sexual assault charges at a criminal trial.

In his report, Mr Hamilton found Ms Sturgeon had not breached the ministerial code, but expressed his frustration that his findings had been heavily redacted by the government.

A member of the public then submitted an FOI to request the Scottish Government publish all the evidence gathered by Mr Hamilton as part of his investigation.But the Scottish Government rejected the request, claiming it did not hold that information, leading to an appeal to the Information Commissioner.

The commissioner found SNP ministers had been wrong to reject the request and ruled that they should reconsider the FOI request. But the Scottish Government appealed this ruling to the Court of Session.

A spokesperson for the commissioner said: “In reaching his decision, the commissioner recognises the strong public interest in maintaining the confidentiality of communications between a legal adviser and its client.

“However, in the specific circumstances of this case, the commissioner notes that the appeal involved significant expenditure of public funds, and that the court acted swiftly in its refusal of the appeal. 

“The commissioner therefore considers that there is a strong public interest in understanding whether or not the authority proceeded with its court action against the legal advice received.

“The commissioner also notes that, under FOI law, it is the duty of a public authority to justify its conclusions for the application of any exemption, and to demonstrate where the balance of the public interest lies in cases where this test applies.”

The Commissioner’s decision requires that information be disclosed by 26 October 2024.