Sturgeon investigation evidence should not be disclosed, court told

Evidence gathered during an investigation into whether Nicola Sturgeon breached the ministerial code should not be disclosed to a third party, a lawyer acting for Scottish ministers has argued.

James Mure KC told the Court of Session on Wednesday that any written evidence gathered by an independent adviser during his investigation into the former first minister ought to be kept under wraps, in response to a challenge from the Scottish Information Commissioner (SIC).

The body ruled in January this year that ministers were wrong to state the information requested by Benjamin Harrop using freedom of information legislation was not “held” by them and instructed them to carry out a review.

Ms Sturgeon referred herself to independent adviser James Hamilton in 2019 over concerns she failed to record meetings and phone calls she had with her predecessor Alex Salmond and his former chief of staff after he was the subject of complaints from two civil servants.

Mr Hamilton investigated and issued a report in March 2021 in which he determined Ms Sturgeon did not breach the code.

Mr Harrop asked Scottish ministers two weeks later to be provided with all written evidence gathered by Mr Hamilton during his investigation.

Ministers declined to hand over the information on two occasions, prompting Mr Harrop to seek a review by the SIC.

They have now appealed against the SIC’s ruling that there ought to be a review of their initial responses, arguing the commissioner took “too technical” an approach to the word “held”.

Ministers also argue any disclosure of the written evidence would be detrimental to Mr Hamilton’s independence as an adviser.

Mr Mure told judges on Wednesday the Scottish Government stored information gathered by Mr Hamilton “purely on his behalf” and only his final report was ever meant to be published.

He told the court: “The report of his findings is the only document that ministers are entitled to receive from the adviser, and the first minister – or, in the present case, the deputy first minister – had no right or interest to seek the information which may be contained in the written evidence provided to Mr Hamilton.

“It is, in my submission, clear that the information is held on behalf of Mr Hamilton, that the ministers have no control over it, and it remains either stored by Mr Hamilton or stored on his behalf in a Government IT system. It remains in the control of Mr Hamilton.

“That means only the independent adviser has access to that information, only he knows what it comprises, and the adviser has no obligation to release that evidence to the Scottish ministers.

“At the end of the day, what the deputy first minister receives is the findings and that is all that Mr Hamilton was asked to provide, all that ministers have a right to receive, and that, of course, has been published.”

The hearing continues.