The Scottish Government was warned that there was not enough distance between Ministers and civil servants and the independent inquiry into whether Nicola Sturgeon broke the Ministerial code.  

Lawyers setting out the case to appeal against a ruling to release evidence submitted to the inquiry into Sturgeon’s conduct said it was “somewhat unfortunate” that there was not “more distance” between the probe and “Scottish Ministers and those advising them”.  

Ms Sturgeon had referred herself to James 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 Mr Salmond

Legal advice obtained by the Scottish Government on its decision to appeal against a ruling by the Information Commissioner to release evidence submitted to Mr Hamilton's inquiry has now been made public. 

The Government had refused to release the evidence, claiming that it was not held by in their archives  - but in the summary to Ministers, the Scottish Government’s Legal Department raises concerns about a “proper lack of separation” which could undermine the case. 

The advice also highlights “risks” fighting the legal battle, saying a defeat at court could set an “adverse” precedent for the handling of future FOI requests in material Ministers did not want made public.  

Nicola Sturgeon gives evidenceNicola Sturgeon gives evidence (Image: PA) However, under the heading “Summary of Prospects of success” for the appeal, lawyers raised their concerns that it could be difficult to argue the Scottish Government couldn’t access the documents it claimed it did not hold.  

The summary states: “On the question of the role of the secretary [a civil servant provided to inquiry chair James Hamilton], counsel expressed the view that “it appears somewhat unfortunate that more distance was not enforced between on the one hand the Secretariat and those serving it, and on the other hand the Scottish Ministers and those advising them”.   

“He [counsel] fully accepts “that it is not unusual for civil servants to perform a variety of functions which do not necessarily come into conflict”.  

“However, he concludes on this point as follows: “I sense that SGLD (Scottish Government Legal Department) has some concerns that the documents show a lack of proper separation between the ongoing work of Ministers and civil servants, and the need for a scrupulously independent Secretariat. For what it is worth, I share those concerns. If it were, or became, necessary to lay these matters out before the court, I consider that they would likely be the subject of comment by the Inner House.”” 

The evidence had previously been requested under Freedom of Information (FOI) laws, but the release was blocked by Government. 

The Information Commissioner later ordered ministers to divulge the information, with the Court of Session subsequently rejecting a Government appeal against the decision. 

Another freedom of information request was then submitted for the legal advice relating to the decision to appeal – which was published on the Scottish Government’s website on Saturday, the deadline for its release.  

The inquiry effectively ended the once close relationship between Sturgeon and Salmond The inquiry effectively ended the once close relationship between Sturgeon and Salmond (Image: PA) The briefing, prepared by the Government’s legal advisors, advises that there was a “reasonable” chance for the appeal to be a success, but warned of a risk of setting a precedent if the appeal failed.  

There were also warnings of “presentational risks” for Ministers, with the adivce stating that the case was “not ideal” to seek authoritative guidance from the Court of Session as to the meaning of “held by”. 

In his advice, James Mure KC, said that Ministers should “tighten up” the way it handles information and staffing when external advisors are involved.  

Mr Mure writes:  “... an appeal to the Inner House of the Court of Session would risk an adverse judgment that elevated some of the Commissioner’s approach into authoritative case precedent that would affect current and future handling of inquiries in an adverse way.   

“That said, however, Ministers may take the view that this Notice itself points to the need to tighten up the ways in which the Scottish Government handles staffing and information handling where external advisers and inquiries are involved, including the role of independent advisers on the Code.” 

SNP ministers have fought a three-year legal battle against releasing documents relating to Nicola Sturgeon’s conduct during the Alex Salmond inquiry, something which drew a rebuke from David Hamilton, the Scottish Information Commissioner, earlier this month.  

James Hamilton led the inquiryJames Hamilton led the inquiry (Image: PA) The Scottish Government said that that the legal advice published on Saturday “confirms Ministers were advised that there were reasonable prospects of success in taking an appeal.” 

The documents show that that Ministers had discussed the legal advice with the Lord Advocate, the most senior government legal adviser, who was content that there were proper grounds for appealing and who agreed with Ministers that the decision should be appealed.  

READ MORE:

A Scottish Government 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’. The material reflects the thorough deliberation the Scottish Government gave to this matter.”