Scottish government facing legal action over Sturgeon inquiry evidence

Scotland’s Information Commissioner is taking legal action against the Scottish government after it missed a series of deadlines to produce documents related to the ethics investigation into Nicola Sturgeon.

Ministers were given until Thursday to prepare some correspondence relating to the inquiry into which the former first minister was cleared of breaching the ministerial code by the investigation into her predecessor, Alex Salmond.

John Swinney told MSPs it “won’t take too long” for the paperwork to be delivered.

But David Hamilton took the unprecedented step of instructing lawyers to initiate legal proceedings that could lead to the government being held in contempt of court.

The Scottish government has been approached for comment.

The commissioner’s office is dealing with six separate freedom of information objections related to the Sturgeon and Salmond investigations, and Swinney said almost 90 requests in total had been received.

The government is appealing against two important cases in the Supreme Court; These include an order to produce certain evidence that independent counsel James Hamilton considered during the ministerial code inquiry.

Swinney told MSPs that some of this material could identify complainants in the criminal prosecution case against Salmond (which saw him cleared of sexual assault in 2020) and that this would breach court orders on the anonymity of complainants.

Ministers agreed to prepare documents related to the current case, including correspondence with the secretariat working for James Hamilton, but said it would take time to make the necessary arrangements.

But David Hamilton said full and timely compliance with the requests was a vital part of information system freedom and led to the unprecedented decision to take legal action.

A spokesman for the Information Commissioner said that “where an authority fails to comply, it will not hesitate to exercise its power to refer non-compliance to the Tribunal”.

They added: “He therefore instructed his lawyers to take the next steps in the certification process to the court. “This is the first time the commissioner has submitted such a report to the court about non-compliance.

“Once certified, the court may investigate the matter and consider failure to comply as contempt of court.”

Benjamin Harrop, one of the members of the public who initially made the freedom of information request, said it was “really quite remarkable” that the matter had resulted in legal action.

He said on social media: “Please note that the SG (Scottish government) has had to issue a new response to me since 1 December.

“I am pleased that the SIC (Scottish Information Commissioner) has initiated these steps and shown that the authorities cannot ignore legal deadlines without consequences.”

Scottish Conservative MSP Murdo Fraser called on ministers to confirm when they will release the documents.

“This unprecedented step by the information commission follows a disgraceful and repeated refusal by the SNP to meet deadlines to release these files,” he said.

“This sums up John Swinney’s approach to management, characterized by an addiction to secrecy and cover-up.

“They are more interested in protecting their own reputation and wasting taxpayer money than doing the right thing.”

Labour’s deputy leader in Scotland, Jackie Baillie, said the SNP had “taken the culture of secrecy and cover-up to new levels”.

He said: “This arrogant SNP government thinks it is above the law.

“Not only are John Swinney and the SNP crudely using transparency laws to protect their own reputations, they are also forcing taxpayers to foot the bill.

“Scottish Labor will comply with the law, release the documents and put an end to the SNP’s Secret Scotland.”

It is almost five years since Nicola Sturgeon was cleared by independent counsel James Hamilton of breaching the ministerial code.

Hamilton expressed disappointment that his report had to be heavily edited, stating that it “presented an incomplete and at times even misleading version of what happened.”

But the Irish lawyer was bound by court orders preventing any publication that could lead to “jigsaw identification” of women complaining about Salmond’s behaviour.

The Scottish government says the same rules are why it has lodged two separate appeals to the High Court against the publication of the documents.

John Swinney made it clear that publishing the evidence given to Hamilton’s inquiry would identify the complainants and would therefore be in contempt of court.

Ironically, his government now risks being held in contempt for a demand they have agreed to comply with.

The hundreds of documents included in this request are taking so long to redact that two deadlines have been missed, leading to unprecedented action by the Information Commissioner.

It remains to be seen whether these documents were actually handed over before the court met to discuss the case, and whether this would have made any difference in how the case was judged.