Publication - FOI/EIR release

All written evidence to James Hamilton QC's investigation: FOI release

Published: 16 March 2021
Directorate: Constitution Directorate
Topic: Constitution and democracy, Public sector
FOI reference: FOI/202100161098
Date received: 19 February 2021
Date responded: 15 March 2021

Information request and response under the Freedom of Information (Scotland) Act 2002

Information requested

- All written evidence to James Hamilton's QC investigation into the FM under the ministerial code.
This includes evidence from the FM, her chief of staff Liz Lloyd and any other individuals within the Scottish Government who have submitted evidence.

Response

It may be of assistance if I clarify at the outset that James Hamilton QC is one of the independent advisers on the Scottish Ministerial Code. The independent advisers are not subject to FOISA.

Accordingly, information held by or on behalf of Mr Hamilton is not within the scope of FOISA. In any event, your request has been made to the Scottish Government rather than to Mr Hamilton, and so we have considered whether the Scottish Government holds any information that falls within scope of your request.

Some of the information you have requested is available from the Scottish Government website, and from the Scottish Parliament website. This is because it was also submitted to the Committee on the Scottish Government Handling of Harassment Complaints and has subsequently been published by the Committee, or has otherwise been published. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. The relevant information can be found at the following links:

While our aim is to provide information whenever possible, in this instance we are unable to provide some the information you have requested because an exemption under section 30(c) (substantial prejudice to the effective conduct of public affairs) applies to that information.

This exemption applies because the information you have requested is information submitted to Mr Hamilton as part of his ongoing investigation in respect of the First Minister’s self-referral under the Scottish Ministerial Code. We consider that disclosure of this information would substantially prejudice the effective conduct of public affairs (i.e. Mr Hamilton’s investigation which is being carried out in accordance with paragraph 1.7 of the Scottish Ministerial Code).

Mr Hamilton’s investigation was ongoing at the date your request was received, and it remains ongoing as at the date of this response. We consider that disclosure of the information submitted to Mr Hamilton by the Scottish Government would be likely to prejudice substantially his investigation because it would lead to an unwarranted focus on some of the material presented to Mr Hamilton before he has had an opportunity to conclude his investigation and prepare his report. In our view, disclosure would be likely to undermine the process whereby such investigations are carried out, and it is likely that this would affect the independent advisers’ ability to deal with referrals and produce reports in terms of the Scottish Ministerial Code in future.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption.

We recognise that there is a public interest in transparency, particularly in relation to the work that the independent advisers undertake, in evidencing that their investigations are carried out objectively and
independently, and in understanding fully the processes used by the independent advisers when a referral is made to them.

However, we consider that there is a greater public interest in allowing the independent advisers to obtain all of the information that they require in order to carry out their investigations, before enabling them to consider all of that information and draw conclusions to inform their reports, without that part of the process necessarily being put into the public domain.

We consider that Scottish public authorities and their staff (principally, but not exclusively, the Scottish Government) would be far more reticent in participating in such investigations in the future if evidence and submissions were to be disclosed before the independent adviser had the opportunity to prepare their report. In short, there is a greater public interest in ensuring that independent advisers can fulfil their functions under the Scottish Ministerial Code effectively and that future referrals are not prejudiced. We also take the view that the public interest is, to a large extent, served by the eventual publication of the independent adviser’s report once the investigation is complete.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG

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