Scottish Government wasted public cash and misled over Sturgeon-Salmond probe files

The Scottish Government misled information watchdogs and squandered public cash by ignoring legal advice as they attempted to keep secret evidence linked to an investigation into whether Nicola Sturgeon breached the ministerial code.

Documents released by ministers following a lengthy legal battle also reveal for the first time concerns raised by the government’s own lawyers about the lack of distance between ministers and civil service and those running the probe.

It looked at whether the former SNP leader breached the standards set for government ministers in relation to an inquiry into a separate botched investigation of harassment complaints against her predecessor Alex Salmond.

The revelations come just days before Salmond’s funeral on Tuesday.

Ministers were asked by a member of the public for evidence provided to James Hamilton – an independent advisor on the ministerial code – on whether Sturgeon had misled the Scottish Parliament about her actions.

Government loses court case

The government claimed it did not hold the evidence but was ordered to turn it over anyway after Information Commissioner David Hamilton ruled it does.

Ministers chose to appeal the decision, at a cost of £30,000, and lost.

The papers make clear the decision to forge ahead was taken by John Swinney, who was at the time deputy first minister, and supported by the former minister of parliamentary business George Adam.

Another freedom of information request was then submitted for legal advice relating to the decision to appeal – which was published on the Scottish Government’s website on Saturday, the deadline for its release.

It shows lawyers thought the argument by ministers that they did not “hold” the information was “weak”.

They advised there was a “reasonable” prospect of success but that on balance the court is more likely than not to refuse the appeal.

Senior counsel James Mure KC had to revise his legal advice after finding out the government’s claim that information held on its IT systems was only accessible to the inquiry’s secretariat – a civil servant provided to James Hamilton – was not correct.

He learned some information was held on a personal drive to which around 10 other officials were given access.

In his advice to ministers, Mure wrote the submission they had made did not give the full picture and without correcting things, they would “mislead the court by silence”.

The government’s own director of legal services, Ruaridh McNiven, wrote to the Lord Advocate expressing that he “would be minded not to encourage ministers to appeal this case”.

Calls for new inquiry

There were also calls last night for a fresh inquiry to be launched into Nicola Sturgeon’s conduct after lawyers raised concerns over the “distance” between government ministers and civil servants during the Hamilton inquiry.

The secretariat provided to inquiry chair James Hamilton, whose identity is redacted in the documents, appears to have acted inappropriately on a number of occasions.

This includes giving ministers their own personal insights into Hamilton’s likely response to possible positions they might adopt.

In his briefing, Mure writes that he does not know to what extent Hamilton was aware of the briefing role being performed by the secretariat.

He adds that a subsequent development involving the unnamed civil servant “only seems to deepen the connection between ministers and the secretariat.

The documents show ministers discussed legal advice with the Lord Advocate, the most senior government legal adviser, who was content there were proper grounds for appeal and who agreed with ministers that it should go ahead.

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In a joint press statement, SNP MSP Fergus Ewing and KC and former MP Joanna Cherry said the revelations show the government has been using the courts and taxpayer money to delay the release of material.

The pair said: “The revelation that the civil servant who provided the Secretariat to the inquiry, was at the same time, continuing to brief and advise Scottish Government ministers about the aspects investigation, calls into question whether this was ever an independent inquiry at all.”

Acting Alba Leader Kenny MacAskill, who took over following the death of close political ally Alex Salmond, said the release “casts a long shadow over its findings, some of which remain redacted”.

He added: “There is surely a prima facie case for the Inquiry to be re run as this undermines public confidence in both the inquiry process and its conclusions.”

The Scottish Government said the publication “confirms ministers were advised that there were reasonable prospects of success in taking an appeal.”