Scottish Government faces legal action over Nicola Sturgeon inquiry evidence

For the first time in the history of the office, Commissioner David Hamilton announced he had instructed solicitors to begin proceedings against the government at Edinburgh's Court of Session.

Mr Hamilton had given the Government until January 15 to release documents relating to the 2021 inquiry by James Hamilton KC into potential breaches of the ministerial code by former first minister Nicola Sturgeon during the investigation into her predecessor Alex Salmond.

A subsequent deadline was set for Thursday, with Mr Hamilton threatening legal action if the documents were not published, but the deadline was again missed by ministers.

First Minister John Swinney has told MSPs the documents will be published, but work is required to ensure the names of complainers in Mr Salmond's criminal case are not included, given they have lifelong anonymity.

Breaching the anonymity order could be viewed as contempt of court.

In a statement, the commissioner said: "The commissioner notes that the full and timely compliance with his decision notices is a key element ensuring the effective operation of FOI in Scotland. He will not hesitate in exercising his power to refer non-compliance to the Court of Session in circumstances where an authority fails to comply.

"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."

Responding to the Commissioner's action, a Scottish Government spokesperson said: “The First Minister has said that the Scottish Government will comply with the Commissioner’s decision on this case as soon as possible.

“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.”

Mr Swinney was asked about the situation during First Minister's Questions on Thursday, and he pledged the information will be published.

"The Scottish Government will comply with the commissioner's decision and will do so as soon as practically possible," he said. "I do not expect this will take much longer.

"The courts have made it clear the identities of those who complained in relation to allegations of sexual assault must have their identities protected and there are no circumstances in which I will do anything that risks breaking those court orders.

"I can't release information which will breach those court orders and amount to a contempt of court."

On X, Mr Hamilton added: "To be clear I’m asking the Scottish Government to comply with the law not break the law. If having reviewed the documents they haven’t looked at yet and they think there is a jigsaw identification issue, they have the opportunity to make that case. That would be compliance.

"Such a position could of course be appealed to me and would be considered fairly and thoughtfully. My non compliance action then is about taking seven weeks to assess some files - and still we don’t have an intended completion date. FOI laws must be respected."

The battle is over documents from the independent inquiry carried out by James Hamilton KC who was appointed to investigate Ms Sturgeon's conduct in relation to the investigation of allegations of sexual harassment by two civil servants against Mr Salmond.

His inquiry looked at the allegation Nicola Sturgeon misled the Scottish Parliament about when she first knew of the complaints.

She initially claimed she learned of them on April 2, 2018, but it emerged she had a meeting with Salmond's former chief of staff, Geoff Aberdein, four days earlier. Hamilton concluded this was a "genuine failure of recollection" rather than a deliberate attempt to deceive.

He also accepted her reasoning that recording meetings and phone calls with Mr Salmond could have prejudiced the confidentiality of legal proceedings. And he found no evidence she had attempted to influence the government’s internal investigation into Mr Salmond or that she had ignored legal advice by continuing to defend a judicial review brought by Mr Salmond, and which he won.

In recent years there have been Freedom of Information requests submitted to the Scottish Government seeking documents from the KC's inquiry, but the government has resisted releasing them.

As a result the Commissioner's office is dealing with six different freedom of information appeals relating to the Sturgeon and Salmond inquiries, and John 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 James Hamilton KC.

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 X: "Remember the Scottish Government have had since 1st of December to release a new response to me.

"I am glad the Scottish Information Commissioner has initiated these steps, demonstrating that authorities cannot simply disregard legal deadlines without consequences."

Scottish Labour deputy leader Dame Jackie Baillie said the "arrogant" Scottish Government "thinks it is above the law".

She added: "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.

"It is clearer than ever that there is a rotten culture of secrecy and cover-up at the heart of this SNP Government."

And Scottish Tory MSP Murdo Fraser said the Government had "shamefully" refused to comply with the law.

"They are clearly more interested in protecting their own reputation and squandering taxpayers' money rather than doing the right thing," he said.

"Now that their sleekit behaviour is resulting in yet more legal action being taken against them, SNP ministers must finally confirm when these documents will be published."