SNP ministers ordered to release secret legal advice

It follows a battle between the body and the Scottish Government with the watchdog previously ruling that information relating to James Hamilton’s investigation into Ms Sturgeon relating to a probe into her predecessor Alex Salmond was held by the Scottish Government and should be released.

But this decision was appealed to the Court of Session with the court finding in favour of the commissioner in December 2023. 

Following the Court’s ruling, a member of the public requested copies of legal advice received by the Scottish Government relating to its decision to appeal. 

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The Scottish Government refused this request, citing a Freedom of Information (FOI) Act exemption which protects confidential legal information. This refusal was subsequently appealed to the Commissioner by the member of the public.

In his new decision published on Monday night, the Commissioner found that, while the FOI Act’s ‘confidentiality’ exemption applied to the advice, he nevertheless found that in this case the public interest favoured disclosure.

He therefore required that the legal advice be disclosed, with certain information, such as personal information, be redacted. 

The Scottish Government has 42 days to appeal the decision at the Court of Session. 

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

“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 last year the Court of Session threw out an attempt by the Scottish Government to halt the publication of details about Mr Hamilton's inquiry into whether Ms Sturgeon broke the ministerial code.

SNP ministers argued they did not hold the information, but the Court of Session rejected their argument.

Delivering the ruling Lord Carloway said: “The court is satisfied that the information involved was held by the Scottish ministers in terms of the statute and we will therefore refuse this appeal.”

Mr Hamilton’s inquiry was instigated after Ms Sturgeon made a self-referral under the Scottish ministerial code following suggestions she had breached it by failing to properly record meetings and phone calls with her predecessor Mr Salmond.

Those meetings took place between March and July 2018 and related to allegations of harassment made against Mr Salmond. 

The Scottish Government set up an inquiry into the complaints made against Mr Salmond.

But the former FM took the Scottish Government to court over the probe, with the government admitting defeat and that the application of a new process set up to investigate the matter had been unlawful.

Judges ruled the inquiry was "tainted with apparent bias", because the official who carried out the investigation had had contact with the complainers prior to the probe.

Mr Hamilton ruled Ms Sturgeon did not breach the ministerial code. 

However, his report did make some criticisms of the former First Minister.

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.”

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.

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”.