Court blocks ScotGov attempt to bury Sturgeon conduct file

The SNP lost its appeal to block a Freedom of Information request aimed at was the former First Minister’s behaviour during an investigation into Alex Salmond.

First Published: 7th December 2023

The Scottish Government has lost its court appeal against the Scottish Information Commissioner to block a public request for evidence relating to the ministerial conduct of Nicola Sturgeon.

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 the FOI applicant and therefore the request did not fall under the scope of the Freedom of Information (Scotland) Act 2002 (FOISA).

The implications of the verdict are far reaching, not least shining 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 the Alba party leader was informed of the investigation, Ms Sturgeon met with his Chief of Staff, Geoff Aberdein, before speaking to her predecessor on the phone three times between April and July 2018.

Ms Sturgeon later referred herself to the independent advisors on the Ministerial Conduct Code on 13 January 2019 over an alleged code violation after neglecting to record interactions with Mr Salmond in accordance with the Ministerial Code.

A redacted Hamilton Report was published on 22 March 2021, admonishing Ms Sturgeon for providing an “incomplete timeline of events” but ultimately concluding she had not breached the Ministerial Code.

The First Minister welcomed the “comprehensive, evidence-based and unequivocal” conclusions of the Hamilton Report.

Once the most formidable duo in UK politics, tensions began flaring after Alex Salmond founded the Alba Party in response to a lack of progress being made towards Scottish independence. **Pic: Getty**

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 Mr 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 Mr Harrop to investigate further but he was declined by the Scottish Government, leading him to the desk of the Information Commission.

They supported Mr 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 sharedthe view that materials requested by Mr 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.”

The three judges took less than 30 seconds to come to an agreement before delivering their conclusion.

**Benjamin Harrop’s FOISA request sought to un-redact the heavily censored Hamilton Report, which cleared Ms Sturgeon of breaking the ministerial code during the investigation into Alex Salmond.** *Pic: PA*

Lord President Carloway told the court: “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, Mr Harrop.

The Scottish Government must now analyse the sensitivity of redacted information within the report to assess what further information can be distributed to Mr Harrop and future FOI applicants.