Scottish government facing legal action over failure to hand over Sturgeon inquiry files

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

Ministers had been given until Thursday to produce some correspondence relating to the inquiry, which saw the former first minister cleared of breaching the ministerial code over the investigation of her predecessor Alex Salmond.

John Swinney told MSPs that it will “not take much longer” for these papers to be handed over.

But David Hamilton has taken the unprecedented step of instructing solicitors to begin legal proceedings which could see the government held in contempt of court.

The Scottish government said it would comply with the commissioner’s decision “as soon as possible” but added the request was complicated by the need to avoid jigsaw identification.

The Commissioner’s office is dealing with six different freedom of information appeals relating to the Sturgeon and Salmond inquiries, and Swinney has said almost 90 requests have been received in total.

The government is appealing against two key cases in the Court of Session, including an order to produce some of the evidence considered by independent advisor James Hamilton during his ministerial code probe.

On Thursday during FMQs, Swinney told MSPs that some of this material could identify complainers in the criminal court case against Salmond – which saw him cleared of sexual assault in 2020 – and this would breach court orders around anonymity for complainers.

Ministers have agreed to produce the papers involved in the current case – involving correspondence with the secretariat working for James Hamilton – but said it was taking time to make necessary redactions.

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

A spokesman for the Information Commissioner said he would “not hesitate in exercising his power to refer non-compliance to the Court of Session in circumstances where an authority fails to comply”.

They added: “He has, therefore, instructed his solicitors to take the next steps in the certification process to the court. This is the first time that the commissioner has made such a report to the court on non-compliance.

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

Benjamin Harrop, a member of the public who made the original freedom of information requests, said it was “really quite remarkable” that the matter had resulted in legal action.

He said on social media: “Remember the SG (Scottish government) have had since 1st of December to release a new response to me.

“I am glad the SIC (Scottish Information Commissioner) has initiated these steps, demonstrating that authorities cannot simply disregard legal deadlines without consequences.”

A Scottish government spokesperson said: “Court orders make it clear that the identities of those who complained in relation to allegations of sexual offences must be protected.

“We cannot publish information which would breach those court orders and amount to a contempt of court.

“Accelerated work is underway to consider each document for release. The assessment is complex given the need to avoid jigsaw identification.”

Scottish Conservative MSP Murdo Fraser called on ministers to confirm when they would publish the documents.

“This unprecedented step from the information commissioner comes after the SNP have shamefully and repeatedly refused to comply with his deadlines for releasing these files,” he said.

“It sums up John Swinney’s approach to governing which is characterised by an addiction to secrecy and cover-up.

“They are clearly more interested in protecting their own reputation and squandering taxpayers’ money rather than doing the right thing.”

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

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

“Not only are John Swinney and the SNP riding roughshod over transparency laws in order to protect their own reputations, but they are forcing taxpayers to pick up the bill.

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

Almost five years have passed since Nicola Sturgeon was cleared of breaching the ministerial code by independent advisor James Hamilton.

Hamilton himself voiced frustration that his report had to be heavily redacted, stating that it “presents an incomplete and even at times misleading version of what happened”.

But the Irish barrister was bound by court orders preventing any publication which could lead to the “jigsaw identification” of the women who complained about Salmond’s conduct.

The Scottish government says those same rules are why it has lodged two different Court of Session appeals against releasing documents.

John Swinney has been clear that publishing the evidence submitted to Hamilton’s inquiry would identify complainers, and thus amount to a contempt of court.

Ironically, his government is now at risk of being found in contempt over a request they have actually agreed to comply with.

It is taking so long to redact the hundreds of documents involved in this request that two deadlines have been missed – leading to this unprecedented action by the Information Commissioner.

It remains to be seen whether those documents are actually handed over before the court sits to consider this case, and whether that will make any difference to how it is judged.