The Scottish Government lied to information watchdogs and ignored legal advice when they spent £30,000 challenging a court ruling over publishing evidence about a secret report.
Ministers were asked by a member of the public for the evidence provided to James Hamilton – an independent adviser looking into whether Nicola Sturgeon breached the ministerial code over the Alex Salmond sexual harassment scandal.
The government said they didn’t hold the information they were asked for but Information Commissioner David Hamilton decided they did.
Ministers chose to appeal and lost.
Now legal advice about this appeal has been made public after another lengthy battle between a member of the public and the government.
It shows top lawyers told ministers the appeal could be reputationally damaging and they didn’t have a high chance of success.
Senior counsel James Mure KC had to revise his legal advice after finding out that what the government had told information watchdogs was untrue.
He wrote: “The problem…is that those submissions stated that the information held on Scottish Government systems was ‘accessible only to the Secretariat’, which I am now advised is not strictly accurate. Some information was held on [redacted] personal drive to which some ten other officials had access…
“The submissions made by Ministers [did not give] the full picture…If Ministers were to pursue an appeal without correcting the slightly false impression given by the original submissions, they would mislead the court by silence…”
The government’s own solicitor and director of Legal Services Ruaridh McNiven also advised against the appeal.
An email sent to the Lord Advocate on March 10, 2023 said: “Ruaraidh had been in touch to say that in his view this perhaps isn’t a case where Ministers should appeal…He would be minded not to encourage Ministers to appeal in this case.”
Despite this the government took the appeal anyway, spending £30,000 to challenge the decision which they lost in a matter of seconds in December 2023.
Scottish Labour’s Deputy Leader Jackie Baillie said: “It is right that this pathetic attempt to pass the buck on the Scottish Government’s complicity in the misconduct of Nicola Sturgeon is now in the public eye.
“It is clear that Ministers lied when it came to what information they could disclose and ignored legal advice not to appeal – racking up more legal bills paid for by the taxpayer so they could try the truth.
“This is more evidence of a culture of secrecy and cover-up that rots at the heart of the SNP.
“Scotland deserves better.”
Lib Dem MSP Willie Rennie said: “The government have known all along they were on shaky ground but they have attempted to string out the process as long as possible in the hope that anyone who might scrutinise is dispirited and gives up. That’s not public service, it’s sneaky and underhanded.”
Scottish Conservative shadow cabinet secretary for justice Liam Kerr MSP said: “This is a typical case of the SNP refusing to listen to the warnings of others as they believe they know best.
“Wasting public money on an appeal likely to fail demonstrates utter contempt for our taxpayers from the SNP.”
A Scottish Government spokesman said: “The decision to comply with the Commissioner’s decision and release the legal advice has been taken after careful consideration and does not set any legal precedent.
“The material shows Scottish Ministers took decisions based on appropriate analysis of the legal considerations.
“This included discussions with the Lord Advocate, who was content that there were proper grounds for appealing and who agreed with Ministers that the decision should be appealed.”
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