Scottish Government to publish legal advice after freedom of information request ruling

The Scottish Government will publish legal advice it took in relation to a freedom of information request appeal after a ruling from the Information Commissioner.

In April 2021, a freedom of information request was made in an attempt to obtain all evidence submitted to the James Hamilton inquiry into whether Nicola Sturgeon breached the ministerial code when she was first minister.

Ms Sturgeon had referred herself to Mr Hamilton – the independent adviser on the ministerial code – in response to allegations she had misled Holyrood in relation to the inquiry into the botched investigation of harassment complaints against her predecessor Alex Salmond.

The Government argued it did not hold the information, claiming it was in a restricted part of its information management system as a result of Mr Hamilton’s inquiry.

Eventually, the Information Commissioner ordered ministers to divulge the information, with the Court of Session subsequently rejecting a Government appeal against the decision.

Another freedom of information request was then submitted for the legal advice relating to the decision to appeal.

Through the same process, the Information Commissioner ordered the Scottish Government to publish the advice, despite the ministerial code saying such a move is not normally taken.

But in his report, the commissioner said: “There is a strong public interest in understanding whether the (Scottish Government) proceeded against legal advice (or whether the prospects of success were a prominent consideration in the authority’s decision to appeal the commissioner’s decision).”

On Tuesday, the Scottish Government told the PA news agency it would provide the applicant with the legal advice by the October 26 deadline.

“The Freedom of Information (Scotland) Act 2002 reflects the longstanding convention that government does not disclose legal advice except in exceptional circumstances,” a spokesman for the Scottish Government said.

“This convention, which is also reflected in the Scottish Ministerial Code, is central to the processes of effective government in the public interest.

“It is intended to ensure that government is able to access full, frank and confidential legal advice to support decision-making, just as other organisations and individuals are able to.

“In this specific circumstance, however, all material within the scope of the decision will be released to the requester on or before October 26, as required by the commissioner.

“This decision has been reached after careful consideration, and does not set a precedent for future disclosure.”