SNP ministers are this morning considering their next steps after losing a court battle over attempts to keep secret details on whether Nicola Sturgeon broke the ministerial code.
Scottish Ministers failed to convince judges Lord Carloway, Lord Pentland and Lord Boyd of Duncansby that the Scottish Government did not hold information sought by in a Freedom of Information request.
The three judges took less than 30 seconds to come to an agreement before delivering their conclusion.
The implications of the verdict are far reaching, not least because it will shine further light on how early and how much Nicola Sturgeon knew of the sexual assault allegations levied against Alex Salmond during his tenure as First Minister.
Three weeks after Salmond was informed of an investigation into his conduct in 2018, Sturgeon met with his Chief of Staff, Geoff Aberdein, before speaking to her predecessor on the phone three times between April and July of the same year.
Sturgeon later referred herself to the independent advisors on the Ministerial Conduct Code on January 13 2019 over an alleged code violation after neglecting to record interactions with Salmond in accordance with the Ministerial Code.
A redacted report by the independent advisor on the ministerial code, James Hamilton, was published on March 22, 2021, admonishing Sturgeon for providing an “incomplete timeline of events” but ultimately concluding she had not breached the Ministerial Code.
The then-First Minister welcomed the “comprehensive, evidence-based and unequivocal” conclusions of the Hamilton Report.
Following its publication, she said: “I sought at every stage in this issue to act with integrity and in the public interest.
“As I have previously made clear, I did not consider that I had broken the code, but these findings are official, definitive, and independent adjudication of that.
Two weeks after the report was published, a Benjamin Harrop submitted an FOI Application for all written evidence submitted to the report’s author.
The abundance of redactions in the published report prompted Harrop to investigate further but he was declined by the Scottish Government, leading him to the desk of the Information Commission.
They supported Harrop’s appeal on the grounds the information he requested was subject to ‘right-to-know’ legislation, which in turn gave way to an appeal by Scottish Ministers.
Representing the Ministers at the Court of Session in Edinburgh, James Mure KC shared the view that materials requested by Harrop were not held by the Government.
He told the court: “The Scottish Ministers accept that the remit includes the investigation, but the information was for Mr Hamilton to seek, to receive, to consider, to control, to store and to use purely at his discretion.”
Conversely, David Johnston KC argued that Ministers enforced access restrictions to the information and as such, they must be in possession of the material in order to set limitations.
He said: “The effect of this argument is that a public authority could exclude information from FOISA, from recovery by the public by imposing restrictions on itself.
“If that is a valid restriction then it clearly undermines the efficacy of FOISA – it would be a major inroad on the freedom of information.
“It follows, I would submit, it therefore can not be the correct interpretation of the Act to say a restriction of the kind we see here has the effect that the Scottish Ministers do not hold this information.”
After concluding that the Scottish Government had failed to comply with the FOI request, Lord President Carloway said: “In short, 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.”
He added: “The Scottish Ministers will wish to consider if any exemptions apply to any of the information which is subsequently made available.”
The Government’s failed appeal will be chalked up as a victory for transparency, but the result does not translate to automatic blanket release of all information requested by the applicant, Harrop.
The Scottish Government must now analyse the sensitivity of redacted information within the report to assess what further information can be distributed to Harrop and future FOI applicants.
