SNP reject bid to publish James Hamilton code probe evidence

The Scottish Government had initially denied they held the information after receiving a freedom of information (FOI) request.

But the Court of Session sided with the Information Commissioner, who said this was a "wholly unrealistic" position.

While that ruling did not compel the government to publish the evidence it meant they were obliged to reconsider the original FOI request, made by a member of the public.

READ MORE: Judges deliver scathing ruling after Sturgeon FOI battle

In the wake of the ruling, The Herald also submitted an FOI request.

However, in their response, the Scottish Government effectively said that every word on every page that has not already been released is still covered by an exemption.

While there are expected exemptions because of court orders and strict rules around personal data, the government also claims that “disclosure of the evidence which was submitted to Mr Hamilton in confidence and on the understanding that material would not be released other than as part of Mr Hamilton’s report would be likely to deter individuals from providing free and frank evidence in such investigations in future".

They said that in their view, “there is a credible risk that officials, particularly those in more junior grades, may feel inhibited in contributing to such investigations if they believe their evidence would be disclosed, other than through the final report prepared by the independent advisers".

Because of this, publishing the evidence would “substantially prejudice the effective conduct of investigations under the Ministerial Code".

The government said they had “considered if the public interest in disclosing the information outweighs the public interest in applying the exemption” but that “on balance, the public interest lies in favour of upholding the exemption".

The response continued: “We recognise that there is a public interest in transparency, particularly in relation to the work that the independent advisers undertake, in evidencing that their investigations are carried out objectively and independently, and in understanding fully the processes used by the independent advisers when a referral is made to them.

“However, we consider that there is a greater public interest in allowing the independent advisers to obtain all of the information that they require in order to carry out their investigations, before enabling them to consider all of that information and draw conclusions to inform their reports, without that part of the process necessarily being put into the public domain.”

Scottish Lib Dem leader Alex Cole-Hamilton criticised the refusal.

He said: "The Scottish Government seem to be admitting that they won't provide this information because if they do ministers might not cooperate with future ethics probes.

"That is damning of the government's approach to transparency and damning of SNP ministers who think themselves above accountability.

"The SNP's secretive stitch-ups are draining trust in our politics. The sooner they are turfed out of power the better."

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

In 2021, Mr Hamilton, a former Irish prosecutor, cleared Ms Sturgeon of breaching the Ministerial Code. However, his report did make some criticisms of the ex-SNP leader.

He said she had given MSPs an "incomplete narrative of events" by failing to tell them about a key meeting, and it was only because he deemed it "a genuine failure of recollection" and "not deliberate" that it did not amount to a breach of the code.

He said it was "regrettable" that Ms Sturgeon failed to mention the meeting, adding: "It is for the Scottish Parliament to decide whether they were in fact misled."

In his report, Mr Hamilton enclosed a note marking his frustration with the redactions he was obliged to make in the report because of court orders, saying it was “impossible to give an accurate description of some of the relevant events dealt with in the report while at the same time complying with the court orders.”

He added: “I am deeply frustrated that applicable court orders will have the effect of preventing the full publication of a report which fulfils my remit and which I believe it would be in the public interest to publish.”

Mr Hamilton’s probe was launched after Ms Sturgeon referred herself following the collapse of the Scottish Government’s defence in a legal battle with Alex Salmond following a botched investigation into harassment allegations.

Ms Sturgeon initially told Holyrood she first heard of the sexual misconduct complaints against her predecessor when they met at her home on April 2 2018.

But it later emerged she discussed the allegations with Mr Salmond’s chief of staff, Geoff Aberdein, in her Holyrood office four days earlier.

READ MORE: Nicola Sturgeon cleared of breaking ministerial code over Alex Salmond affair

Ms Sturgeon said she had forgotten the contents of her discussion with Mr Aberdein and it was her meeting with Mr Salmond which was “seared on her memory”.

Last month, Mr Salmond launched a fresh legal case alleging misfeasance - the wrongful exercise of lawful authority - by civil servants involved in handling harassment complaints against him.