Legal advice relating to Scottish Information Commissioner decision: First Minister’s statement - 29 October 2024

Presiding Officer,

As this is the first occasion on which I have addressed Parliament since the death of Alex Salmond, I wish to record my sadness at his passing and express my sympathy to his wife Moira and his family at this time. I will move a Motion of Condolence in Parliament tomorrow.

I am providing this statement to Parliament in response to a request from other parties.

On 3^rd August 2020, acting as Deputy First Minister, I set out the remit for James Hamilton in examining the self-referral of the then First Minister under the Scottish Ministerial Code.

I did this as the Minister delegated to sponsor the process, given it would not have been appropriate for the First Minister at that time – who is the usual sponsor of investigations under the Ministerial Code – to be the sponsor for issues relating to allegations against herself.

I formally initiated the process. I sponsored the process within government. But in setting out that factual information that Parliament has known about since 2020, I want to make one point crystal clear:

The first time I learned of any of the contents of James Hamilton’s report was when he sent it to Ministers on 22 March 2021.

Concerns about the process have been raised in recent days because the Scottish Government has published legal advice on the handling of Freedom of Information issues, including the handling of a court challenge to an FOI Commission ruling, relating to Mr Hamilton’s report.

This material centred on a decision notice issued by the Scottish Information Commissioner requiring Scottish Ministers to disclose legal advice.

Specifically, it required us to release Legal Advice in relation to a previous Court of Session case taken by Scottish Ministers against the Scottish Information Commissioner himself. 

Despite the rather convoluted detail, the key principles at question are straightforward.

It has been the long-established position that everyone, including the Government – any Government - should be able to receive legal advice in confidence under “legal professional privilege”. In the case of the Government, the long-standing position is that it is only in exceptional circumstances, the public interest in maintaining this privilege is outweighed by the public interest in the disclosure of the legal advice.

The importance of this fundamental legal principle has always been reflected in the FOI legislation passed by this Parliament in 2002 under the Labour / Liberal Democrat Scottish Executive.

Indeed, as I understand it, exactly the same position is taken by every government in the United Kingdom, both the devolved governments and the UK Government.

As a result, it is incredibly rare for legal advice to ever be disclosed.

The Commissioner, however, in responding to an appeal from an FOI request, took a different view.

His written reasons for his ruling in this case set out an argument that rests on his view of the public interest favouring release and outweighing the public interest in maintaining legal professional privilege.  

The Commissioner’s position was carefully considered by the Scottish Government and, while it would have been possible to appeal, I decided – after consultation with the Lord Advocate, which I am obliged under the Ministerial Code to do - to release the information. And this was published on Saturday.

Let me now turn to the substance of the legal advice itself.

It shows that when the decision to go to court was made, it was taken on the advice of King’s Counsel – and I am quoting directly from the conclusions here – which said, and I quote “I consider that there are reasonable prospects of success”.

In deciding to challenge the commissioner’s decision, the Lord Advocate’s view, as the most senior legal adviser to Ministers, was sought.

It was equally robust.

I am quoting now from the published minute of her advice which states, and I quote, “there were three sound arguments” and that the Commissioner’s decision, and again I quote, “should be tested” in court.

So, the legal advice was unambiguous. It supported challenging the Commissioner’s decision. And I took that decision.

I left the Scottish Government shortly after this point however and work continued within Government to prepare for the case.

What the material published on Saturday shows is during that time, the legal advice on the prospects of the case did become less positive.

Crucially, however, the advice to Ministers of 30 May 2023, remains crystal clear and concludes as follows:

“Our view…is that, despite the slightly more pessimistic note from counsel, the rationale for appealing the decision is unchanged. There remain reasonable arguments to make in support of Ministers’ position.”

Indeed, when the case came to court, the court stated in its judgment that the issue was and again I quote “a sharp issue of statutory interpretation.”

Ministers were presented with legal advice that supported a court challenge and the court took the view that the matter was a “sharp issue of statutory interpretation.” In short, it was a perfectly rational decision by Ministers to go to court.

So, the original accusation that has been made in this case, that Ministers acted against legal advice in deciding to challenge in court the original decision of the Freedom of Information Commissioner, has been disproved by the publication of the legal advice at the weekend.

That having been the case, concern has now shifted to the arrangements for the Secretariat who provided support to James Hamilton as he carried out his work.

As is normal in circumstances where the Government establishes short-term inquiries, this Secretariat was drawn from the civil service.

It should be noted that this was known at the time Mr Hamilton began his work.

I wish to be clear at this point that the individual chosen to undertake this work was not a special adviser but a non-political, career civil servant of impeccable record and repute.

Despite being known at the time, concerns have now been raised that a civil servant provided the Secretariat function.

These stem from comments contained within the material published where the King’s Counsel expresses regret that arrangements had not been put in place to ensure even greater distance between the civil servant performing the Secretariat role and Ministers.

The KC states however: “It does not appear that there was any briefing about the contents of evidence gathered by Mr Hamilton; the tenor of his investigations; or the potential contents of his report.”

The KC himself narrates that the Secretariat engaged on such issues as paying for legal advice.

As the sponsoring Minister, these practical issues rightly came to me for agreement because it was my role to do so.

It may help Parliament if I provide some examples of the type of contact between the Secretariat and my office during the life of Mr Hamilton’s work.

On 6^th October 2020, the Secretariat informed my office via email of correspondence from the Parliamentary Committee’s Clerking Team to the Secretariat telling them that Mr Hamilton’s written evidence to the Committee would be published the next day. This email was duly acknowledged.

On 9^th October 2020, a submission from the Secretariat to myself and the then Lord Advocate was received regarding sourcing and paying for legal advice for the independent adviser’s work. I agreed to fund the legal advice.

On 11 January 2021, the Secretariat sent a letter from James Hamilton to me advising that Mr Hamilton had received correspondence from MSPs including Alex Cole-Hamilton concerning his remit. I replied to Mr Hamilton a few days later.

On one occasion I was required to clear Parliamentary Answers in my name.

These were submitted by the Secretariat on 3rd November 2020 in a formal submission and set out that Mr Hamilton can investigate any aspects of the Ministerial Code that arise within his remit. This submission included a draft letter to Mr Hamilton to draw his attention to the answers to the Parliamentary Questions. Again, I duly answered the Parliamentary Question and issued the letter.

On two occasions, 7 December 2020, and 13 February 2021, I was either informed of or cleared as appropriate, Freedom of Information requests which were to be issued and were submitted to my office by the Secretariat.

After Mr Hamilton’s report had been received into Government on 22 March 2021, there were emails between my office and the Secretariat arranging a meeting between myself and Mr Hamilton – this took place some days later – and I issued a letter to Mr Hamilton via the Secretariat thanking him for undertaking this work.

Presiding Officer, James Hamilton is an independent commissioner of impeccable reputation and integrity.

The person who supported him as the secretariat was a non-political career civil servant.

Questioning the independence and integrity of James Hamilton and of a civil servant who cannot publicly defend themselves, is unwarranted, unfair and unsupported by the facts.

I reiterate what I said at the beginning of this statement. The first I knew of any of the contents of James Hamilton’s report was when he delivered his report to us on 22 March 2021.

Those are the facts and nothing in Saturday’s publication changes them.