SCOTLAND’S top civil servant has defended how SNP ministers handled a legal battle over the publication of evidence linked to an inquiry into whether Nicola Sturgeon broke the ministerial code.
John-Paul Marks, the permanent secretary to the Scottish Government, responded after the Scottish Information Commissioner criticised the way the case had been handled in a letter earlier this week.
David Hamilton, who is responsible for upholding the principles of the Freedom of Information Act, expressed “disappointment” that ministers had challenged a ruling that said they should release the Sturgeon-linked evidence – saying that legal experts had told them their chances of winning were “substantially diminished”.
However, in a letter reported by The Herald, Marks has now challenged that characterisation.
In his response, the top civil servant said: "I am satisfied that the Scottish Government responded within the proper timeframe, that the decisions taken at each stage were informed by comprehensive and impartial advice including from the King's Counsel and the Lord Advocate and the case was handled consistent with ministers obligations under the Freedom of Information (Scotland) Act.”
He went on: "As we discussed and consistent with the legal advice published I am satisfied that throughout ministers had a stateable case, seeking to test an important point of statutory interpretation."
"To support transparency and accountability the response to the final decision was the subject of a Parliamentary statement on October 29,” he said.
First Minister John Swinney told MSPs in that statement that the Lord Advocate, the most senior legal adviser to Scottish ministers, said the Scottish Government’s case had “reasonable prospects of success” and there were arguments that “should be tested” in court.
He added that the Scottish Government’s fundamental position – that legal advice to ministers should be kept confidential – was conventional and it was the commissioner’s position to the contrary that was unusual.
The case relates to an FOI request made in April 2021 for evidence given to a probe by James Hamilton KC, the former independent adviser on the ministerial code, into the actions of Sturgeon during the Alex Salmond probe. He ruled in 2021 that she did not breach the code.
The first FOI request asked the Scottish Government to release all “written evidence” submitted to the inquiry, which the Scottish Government tried to prevent, saying the information was “not held” and that Hamilton was exempt from the rules of information disclosure because he was independent of the government.
This was appealed by the Scottish Information Commissioner which said the information was in fact held by the Government and that the information should be released.
The Scottish Government complied partially and published “links to information already available” but kept secret the remaining information “on a number of grounds” and this request remains live under an appeal to the commissioner’s office.
But as well as not fully complying with the commissioner’s decision, the Scottish Government also attempted to appeal that decision – a fight that a second FOI release showed was based on split legal opinion.
