Court of Session: Defeat for Scotgov but don't expect transparency

For a government with a locked-in majority thanks to its deal with the Scottish Greens, Humza Yousaf’s SNP is getting used to being knocked around a bit.  

Defeats are racking up, and victories, either at the ballot box or wider out across the political field, seem harder to come by. 

Clubbings and climbdowns in the debating chamber over issues as disparate as Highly Protected Marine Areas, bottle deposit schemes, heat pumps and Michael Matheson’s iPad bill have come and gone with a staccato rhythm, leaving the impression that some MSPs of the nationalist persuasion might be feeling a little bruised.  

Perhaps not fully punch-drunk, but maybe tapped out in a tipsy fashion.   

This week it was the turn of M’learned friends at the Court of Session to deliver another blow to the government, one that may resonate far beyond the thinking pods and podiums of Holyrood.  

With barely a moment’s conference between them, three judges unceremoniously threw out the Scottish Government’s appeal against a ruling it must disclose evidence gathered during an investigation into whether Nicola Sturgeon breached the ministerial code under wraps. 

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The case, pitting ministers against the Scottish Information Commissioner, hinged on whether the Scottish Government ‘held’ the information or not. As the investigator – Irish lawyer James Hamilton – was independent, ministers argued, the information was his, not theirs.  

The fact the investigation was compiled solely at the Scottish Parliament and remained on their IT systems was a by-product of the whole affair, they said. It was merely resting in their account, so to speak.  

This defence cut no ice with Colin Sutherland, Lord President of the Court of Session, who ruled that it could indeed be subject to a Freedom of Information request, and therefore rejected the appeal.  

“A humiliating defeat for the SNP Government,” trumpeted Scottish Conservative MSP Murdo Fraser, who himself had been a bit of a thorn in the side of the government during the investigation into Nicola Sturgeon.  

“This shabby episode is the latest example of the SNP’s addiction to secrecy and aversion to accountability,” he added for good measure. “This growing trend of public money being squandered on failed legal cases pursued in the SNP’s political interest has to stop.” 

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Former first minister Alex Salmond, a man with his own legal axe to grind, twisted the knife further.

“The Scottish Government are serial losers in court and their wafer-thin arguments were given short shrift today by the Judges in the Court of Session,” he said. “And yet it has taken two and a half years to reach this point.”  

To understand why this is important, we have to go back in time a little bit, to 2021. James Hamilton was asked by Nicola Sturgeon to examine her conduct over whether she broke the ministerial code. 

Several issues were at stake, but chiefly was the charge she had been less than honest over the timing of meetings she had with Alex Salmond after her predecessor was accused of sexual misconduct – charges he would later be cleared of in court.  

Mr Hamilton found that she had not deliberately concealed anything. But his report was heavily redacted and has never been published in full.  

It is over a request to publish the complete evidence, submitted under Freedom of Information legislation by a member of the public, which the Scottish Government took its own information tzar to court.  

Lawyer James Hamilton was asked by Nicola Sturgeon to examine her conduct over whether she broke the ministerial code but the report has never been fully published (Image: Newsquest)
Now that the issue is heading back to ministers’ in-trays, it paves the way for that particular can of worms to be re-opened in full. Will the public finally get to rake over the ashes of an issue that shook the political sphere, and looked to be the defining moment of Nicola Sturgeon’s time as First Minister?  

Probably not. Despite the Scottish Government losing its case, there are more goalposts to be shifted.

James Hamilton himself spoke of his “frustration” with court orders which meant he could not disclose the identities of certain individuals involved, meaning there was the chance of an incomplete and, at times, misleading version of what happened.” 

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Those court orders will presumably remain in place, and the Lord President left the door open for the Scottish Government to find reasons not to publish the evidence in full, saying: “Scottish ministers will wish to consider whether any exemptions apply to any of the information which is subsequently made available.” 

What those exemptions are remains to be seen, but civil servants are likely dusting off their rulebooks to go through the fine print as we speak.  

Humza Yousaf promised his government would deliver “more openness, more transparency”, but expect the Scottish Government to keep up the fight to hold on to its secrets.