Wings Over Scotland

On 5 April 2021, I sent a short and simple Freedom Of Information (FOI) request to the Scottish Government asking for:

“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.”

Over four and a half years later, because of the government’s pathological aversion to transparency and accountability, we’re still not there.

But we’re inching closer.

Background

Evidence was submitted to Mr Hamilton (the then Independent Advisor on the ministerial code) into his investigation into whether the then FM Nicola Sturgeon had broken the ministerial code, by the following people:

(The then) First Minister, Nicola Sturgeon; the former First Minister, Alex Salmond; (the then) Permanent Secretary to the Scottish Government, Leslie Evans; Liz Lloyd, (the then) chief of staff to the First Minister; Geoff Aberdein, (formerly chief of staff to the former First Minister); Duncan Hamilton (a King’s Counsel and former SNP MSP), Kevin Pringle (ex-strategic communications director of the SNP), David Clegg (the then) editor of the Daily Record, Stuart Nicolson (the then) head of communications for Nicola Sturgeon, Lorraine Kay (a civil servant in the office of the former First Minister) and Peter Murrell (the then) CEO of the SNP.

The report was published in March 2021, and to quickly recap, Mr Hamilton’s opinion was that Nicola Sturgeon did not break the code, but that it was for MSPs to decide whether they were misled or not. The harassment committee investigating the botched and illegal investigation into Mr Salmond by the Scottish Government found that they were, whereas the Parliament as a whole (ie including all SNP MSPs) voted otherwise.

Mr Hamilton’s report, in certain passages (mainly in relation to when Nicola Sturgeon first knew about the complaints against Mr Salmond) is not coherently readable due to the scale of redaction to the report, which was done under the auspices of the then Deputy First Minister and the current First Minister, John Swinney.

This resulting inability to understand key parts of the report was widely criticised at the time. The Scottish Government’s position was and remains that the redactions were necessary to protect the identity of the complainants against Mr Salmond.

James Hamilton (in a note attached to the report) described the difficulties that the court orders caused:

“A redacted report that effectively erases the role of any such individual in the matters investigated in the report cannot be properly understood by those reading it, and presents an incomplete and even at times misleading version of what happened.”

[…]

“I am deeply frustrated that applicable court orders will have the effect of preventing the full publication of a report which fulfils my remit and which I believe it would be in the public interest to publish.”

The evidence (oral and non-oral) which was submitted to his investigation was never published in full by the Scottish Government. (Only within Mr Hamilton’s report, and that of the harassment committee, can some small parts of it be found.)

I’ve created the timeline below to help in understanding what has happened, when it happened and how long I’ve had to wait for this case to resolve.

(There are other branches of inquiry that I’ve pursued coming off this FOI request which are extremely interesting, but I can’t cover them all in this article alone, which is already forbiddingly lengthy.)

My request was submitted in April 2021, and the Scottish Government refused to release the evidence. I then appealed to the Scottish Information Commissioner (SIC), an independent public body responsible for enforcing lawful compliance with FOI requests by public authorities.

In January 2023, the SIC ruled (in a decision logged as 004/2023) that the Scottish Government did hold the evidence I had asked for and ordered them to provide me with a revised response. The Scottish Government insisted that since James Hamilton was an independent advisor, he was not subject to FOISA and therefore the evidence he had gathered was not “held” by it. They instead appealed this decision to the Court Of Session (case XA10/23), which ruled in December 2023 that the SIC was correct in its decision.

(If the SIC had ruled against me back in January 2023 the case would have stopped there, as unlike the Scottish Government I don’t have access to unlimited public funds to spend on court appeals.)

In its revised response in February 2024, the Scottish Government disclosed none of the evidence to me (other than that already available elsewhere), citing numerous exemptions. (Public authorities can refuse to disclose information if there is an exemption which they believe applies to it.) I again appealed this to the SIC, and since February of 2024 have been waiting for their decision, which is what we got this week.

To try to help with clarity, I’ll break it down into sections.

The Scottish Government’s handling of this case

In relation to both this decision notice just published and the one in 2023 (004/2023), both times have seen critical failures by the Scottish Government during investigations by the SIC

In the first investigation, the Scottish Government misled the SIC as to where evidence related to the Hamilton Inquiry had been stored within Government. One of the Scottish Government’s key arguments to stress the “independence” of the investigation was that the evidence had been stored such that it was “accessible only to the Secretariat”.

(The “Secretariat” is James Hamilton’s team aiding him with the report.)

However, in reality, some of it had been stored on a personal drive, which 10 other civil servants had access to from the onset of the investigation. (See the extract below from the Scottish Government’s legal advice which was released as a result of an FOI request by myself and the SIC decision notice 193/2024.)

Their own Senior Counsel James Mure KC summed this up (page 72, para 14) during preparations for the court appeal (XA10-23) in his legal opinion.

I asked the Scottish Government in an FOI request whether it had carried out any form of internal review into this failing, as well as if anyone had been dismissed or disciplined. To my naïve astonishment, no review had been undertaken simply because it argued that the submissions:

“were provided in good faith and reflected the Scottish Government’s understanding at that time”

In relation to the new decision notice, it gets even worse. The Scottish Government did not comply with an “information notice” (a request for the information) by the SIC, in relation to some of the evidence (called Document 38 in the decision). Not complying with an information notice is against the law, and the SIC could have referred the matter for contempt of court.

If, as the Commissioner has rightly pointed out, his staff had not been so diligent, this information would have been left out entirely. Now we do not know what is within Document 38, and will not know until disclosure takes place (if it does at all), so it’ll be extremely interesting to see what the Scottish Government left out when it wrongly submitted all of the evidence to the SIC.

(I have submitted a new FOI request to see these exchanges between the SG and SIC.)

The SIC also found that the Scottish Government in some cases failed to make a legitimate case as to why some exemptions had been utilised, and why in some cases no exemptions had been applied at all.

(This is made even more confusing when considering that the SIC gave the Scottish Government additional time beyond that which it was entitled to, so as to ensure its positions on the exemptions were clear.)

Despite this extended period, the Scottish Government’s handling of the case was criticised by the SIC even further.

For example, it was only during the investigation that the Scottish Government decided to add further exemptions to the evidence (after their revised response to me).

This raises serious questions not only for the Scottish Government in its revised response to me back in January of 2024, as to why these exemptions were not in place originally, but in terms of fairness to applicants who challenge the original exemptions in our submissions to the SIC, only for the goalposts to change mid-match.

The Scottish Government, therefore, relied on four exemptions to prevent the disclosure of the evidence: 26(c) (Contempt of court), 30(c) (Prejudice to the effective conduct of public affairs), 36(1) (Legal advice) and 38(1)(b) (Personal information).

I should also make clear, the use of the word “some” in this article is of necessity extremely vague. As the documents have not been disclosed, I have no idea how much information was correctly exempted and how much was not.

Out of scope

There was also some information which the Scottish Government claimed was out of scope to my request, meaning it was within the documents sent to the SIC but it was not relevant to my request. The Scottish Government attempted to argue that my request for “written evidence” did not cover written transcripts of interviews conducted by Mr Hamilton, and therefore they did not need to consider exemptions for this information (and it would not therefore be released).

Indeed, within the legal advice prepared by James Mure KC for XA10-23, on page 6 he makes clear that it is his opinion that such transcripts would not be within the scope of my request.

The SIC disagreed with the Scottish Government and found that my request did cover such transcripts.

In relation to other aspects, it found that the Scottish Government was right to exempt some information which was not evidence to the Hamilton inquiry, however, in relation to some information, it was not correct to describe it as out of scope. Given that the Scottish Government did not specify what exemptions applied to this information, the SIC has ordered them to provide me with a fresh response, which could also have exemptions applied (meaning the case could, in theory, be appealed to the SIC for a third time if I am dissatisfied with the revised response).

Section 26 (c) (Contempt Of Court)

This is an exemption to make sure that no information which could identify the complainers against Mr Salmond was published. In my arguments to the SIC, I made clear that if such information did it should be exempted, but crucially, if the information did not lead to identification, then it should be disclosed.

Unlike the Hamilton report, where the Scottish Government’s lawyers were the only redactors (as Hamilton made clear in his attached note), the SIC was able to examine the evidence in full, unredacted, to make its own judgement.

The SIC, in its decision, found that the Scottish Government did use the exemption excessively. Meaning that while there was some information that would legitimately identify the complainers if published, it had attempted to redact other information which was not in fact contempt of court.

Indeed, part of the issues related to the Hamilton inquiry is not direct contempt of court, i.e. naming a complainer, but of jigsaw identification. The jigsaw refers to publishing some information (a jigsaw piece) in relation to the complainer which itself does not identify a complainer, but when put together with other information in the public domain (the other jigsaw pieces) will enable identification to occur.

Mr Salmond and the Spectator challenged and changed (by Lady Dorrian the same judge in Mr Salmond’s criminal case) the original criminal order (made in 2020) in 2021 (highlighted in bold) to make clear that being a complainer in the Salmond trial did not prevent information distinct from their being a witness in the trial from being published:

“preventing the publication of the names and identity, and any information likely to disclose the identity, of the complainers in the case of HMA v Alexander Elliot Anderson Salmond as such complainers in those proceedings.”

Once information is redacted and released under this exemption, in all likelihood, it can never be unredacted (unless the court order is lifted) as you then bring attention to what you were originally redacting under this exemption, which is de facto contempt of court. This is one of the reasons, in my opinion, why the SIC refused when it was asked to unredact parts of the Hamilton report.

Though we cannot know for certain, nor will we ever know for certain (as discussing why something may or may not be contempt is also contempt) how much the SIC determined was wrongly exempted by the Scottish Government, what we can say is this:

The SIC’s decision has confirmed accusations that redaction in the name of contempt of court related to the Hamilton Inquiry was in at least some cases unjustified, thereby frustrating the right of the public to access information which was central to understanding the findings of the investigation.

Section 36 (1) – Legal Advice and Section 38(1)(b) (Personal Information)

The Scottish Government also utilised the mentioned exemptions above. In short, the SIC found that while the application of these two exemptions was appropriate in some of the information, in others it was not (and in one case the public interest argument was met for disclosure).

In terms of section 36 (1), the Scottish Government can prevent disclosure of its legal advice if it is considered privileged and has not been previously published. However, if there is sufficient public interest in the legal advice, such as when the Scottish Government appealed 004/2023 to the Court of Session, then disclosure can occur (though this is rare).

The SIC found that some information in one document had been incorrectly exempted by the Scottish Government, and in reference to information in another document, though correctly exempted, reached the public interest threshold for release. This information was legal advice which Mr Salmond had received and submitted to Mr Hamilton in his evidence (and is not currently in the public domain).

In regards to section 38(1)(b), this prevents the release of information that relates to a living person, and is their own personal data. So for example, their phone number, address, occupation and even their names.

The current approach by the Scottish Government is that if one of its employees is of a senior level (the Permanent Secretary, for example), then their name can be disclosed in FOI requests; if the employee is of a junior level (for example, a private secretary) then their name will be redacted in any correspondence involving them.

It gets a bit complicated in the decision notice (beyond my understanding at times, as it involves FOISA and the Data Protection Act 2018), but it essentially boils to this: in regards to some of the information, the Scottish Government correctly applied this exemption; in other cases it did not.

Which is a useful reminder to anyone considering submitting an FOI that if a public authority has claimed that information is personal data, it’s always worth asking the SIC to check.

Section 30 ( c ) – Prejudice to effective conduct of public affairs

The Scottish Government applied this exemption to nearly every aspect of the information that I requested. It did so as it argued that since the evidence obtained by Mr Hamilton was given in confidence, disclosing it would undermine that commitment to confidentiality as well as discourage individuals from giving evidence to a similar inquiry in the future.

From my own research, I found that there appeared to be no such confidence commitment. Neither the remit set by John Swinney nor Mr Hamilton’s report makes any mention of this. The 2018 ministerial code (the one in operation at the time) also makes no such commitment (though in Swinney’s revised 2024 ministerial code, a footnote (6.2) now covers this). I also asked the Scottish Government a few years ago in an FOI request if it had any written guidance for its employees giving evidence to such an inquiry, and it confirmed there was none.

As to the Scottish Government’s argument that individuals would be discouraged in the future if their evidence was published, one need only look at a prior ministerial code investigation in 2012 by Sir David Bell in which all evidence was published, yet Mr Hamilton confirmed in his report that all witnesses:

“gave me full cooperation and answered follow-up questions where necessary although I had no power to compel any person to cooperate with the investigation”

This exemption is also as critical, if not more so, than the contempt of court exemption. Even for information that the SIC found had been wrongly withheld under the other exemptions, if the Scottish Government’s argument was correct under section 30(c), then no information would be released at all. If even one exemption has been correctly applied to information (even if others have not) the information cannot be disclosed.

But the SIC determined that there would be no specific harm to the conduct of the affairs of the Scottish Government by disclosure of all the evidence (minus that which was legitimately exempted under other exemptions).

Indeed, so overwhelming was the case against the Scottish Government that the SIC didn’t even need to consider the public interest argument of this exemption (meaning that even if the exemption was correctly applied, the public interest could still have resulted in its disclosure).

It would be an understatement to say that this is a complete humiliation of the Scottish Government’s position. This was the most high-profile investigation in recent Scottish political history, and despite claiming that individuals gave evidence in confidence, and the harm that this would cause to future investigations, the SIC decided against them.

You might be wondering, as I did, given the strong evidence against them, why did the Scottish Government maintain this position? Why could someone like me who works several jobs, has limited time off, and has dedicated some of that limited time to exploring this with no financial support be able to see what the government of Scotland could not? I have no evidence-based answer to that question.

The end decision

Resultingly, minus information which the SIC agreed with the Scottish Government was correctly exempted under 26(c) (Contempt of court), 36(1) (Legal advice) and 38(1)(b) (Personal information), all other information has now been ordered to be disclosed.

Meaning that every single exemption employed by the Scottish Government in its revised response to me, which I appealed, was utilised either completely incorrectly or partly incorrectly (as determined by the SIC).

What evidence has been ordered to be released?

Simply put, I have no idea what the SIC has ordered the Scottish Government to release, put simply (minus that specifically described above).

I do not know for example, if Mr Aberdein’s evidence will now be published. Part of his evidence was that he was told the name of a complainer by a senior Scottish Government official, which was described as “credible” by Mr Hamilton in his report. Mr Salmond and the Spectator, in their successful attempt to vary the court order in early 2021, did so in the hope that Mr Aberdein’s evidence would be published.

When the Scottish Government re-investigated the data breach allegation in 2021 it found that no such data breach occurred (despite it not obtaining any evidence from the key actors), instead relying on their accounts within the Hamilton report.

Mr Aberdein’s meeting with Nicola Sturgeon on 29 March 2018, as well as those with the Scottish Government official earlier, is critical in understanding who knew what and when regarding the complaints against Mr Salmond. It was her statement to Parliament that she first knew about these complaints several days later in a different meeting with Mr Salmond and others at her home. It was only afterwards that she admitted that she had “forgotten” about the meeting with Mr Aberdein, despite its explosive revelations.

The evidence may also shed light on the allegation that a senior Scottish Government official “’asked for account of when they knew about Salmond complaints to be changed”, as noted in an article by Sky’s James Matthews in 2021 – an aspect of the entire saga which has not been fully explored or discussed since the article’s publication (and is not mentioned in the redacted Hamilton report).

Ultimately, we do not know how much of each individual’s evidence will still be redacted under 26(c) (Contempt of court), 36(1) (Legal advice) and 38(1)(b) (Personal information).

What happens now?

The SIC has given the Scottish Government until 12 January 2026 to respond to its decision. It has given the Scottish Government a “marked-up” copy of the evidence, basically showing the Scottish Government what parts can be redacted in the released evidence.

If the Scottish Government accepts the decision of the SIC, the information will be released.  If the Scottish Government believes that these redactions to do not go far enough and that the SIC has erred in law, it can appeal the decision to the Court Of Session (again). This would be the third time in relation to FOI requests related to the Hamilton Inquiry or the Scottish Government’s handling of information that the government has appealed to the Court Of Session in an attempt to keep the information secret.

There is even the possibility that the FM deploys the nuclear strategy of section 52 of FOISA (which has never been used), which allows the FM to essentially nullify the decision notice (the SIC wants this clause removed from the Act).

(This can only be used in relation to some exemptions, one of which is section 36(1), and I’m unsure if it would apply to the entire decision notice or just information related to 36(1).)

It may also, if it loses at the Court Of Session, appeal to the UK Supreme Court. Crucially, any appeal would almost definitely not be heard until after the Scottish elections in May. My FOI request was sent in April 2021, before the 2021 Scottish elections. For it still to be potentially under investigation after TWO Holyrood elections is, in my opinion, wholly unacceptable (not even counting the cost to the taxpayer).

For as the UK information commissioner and the SIC have both said:

“Information delayed is information denied.”

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FOOTNOTE

How can an FOI request take this much time to resolve, and still not yet BE resolved? There are several possible answers:

(1) The under-resourcing of the SIC, which Mr Hamilton has recently commented on himself.

(2) The complexity of the case.

(3) The SG’s argument that it did not “hold” the evidence and its decision to appeal 004/2023.

(1) requires political parties to commit to enhancing the funding of the SIC, which still has only 11 FOI officers for investigations to cover every FOI appeal for all Public Authorities in Scotland – the police, councils, the Scottish Government, NHS, fire services, universities and more.

(2) is understandable to at least some degree, given the issue of contempt of court and the need to avoid publishing information which would identify complainers, but almost half a decade still seems excessive.

(3) The key failure in this case is the Scottish Government’s original outlandish argument that it did not “hold” the Hamilton evidence (which is now even more laughable given the SICs decision last week). Remember James Hamilton was an Advisor on the Ministerial Code, his remit was set by the Deputy First Minister, his secretariat was a Scottish Government civil servant, and his report, though not legally binding, was politically.

Thereafter, once the SIC found that it did hold the evidence in 004/2023, its decision to appeal to the court of session was simply disastrous. It cost the taxpayers a six-figure sum, went against legal advice from its senior counsel who told them that they would likely lose, and ultimately they did lose in humiliating style, with the judges conferring for less than 40 seconds after oral arguments had ended before announcing that the Scottish Government’s appeal was rejected.

However, what did the court appeal and the initial argument of not “held” do, which was of benefit to the Scottish Government? It delayed the entire process significantly. That decision came exactly two years ago yesterday. Under FOISA 2002, if the SIC (and courts if necessary) find that a public authority did indeed “hold” information, the clock simply restarts. The authority issues a revised response, whereupon it can utilise new exemptions  and the information is not released.

If the applicant (in this case me), disagrees, we have to appeal to the SIC (again) and a new SIC investigation starts afresh. All of this adds up to months and eventually years, all because a public authority can claim it does not “hold” information that everyone knows it does hold.

This is one of the main reasons why I suspect an appeal to the Court Of Session may once again be on the cards. If the Scottish Government accepts the decision it will face inevitable scrutiny, not only about its handling of the case but the contents of the evidence (which it has gone to great lengths thus far to keep secret).

All of this dirty-linen-washing would then form the backdrop to the Holyrood elections in May. If it appeals, though, then any appeal would take place well after the elections, by which point power would have been cemented for another five years.

Just a reminder again: I put in my original request before the 2021 election, there exists the distinct possibility that if the Scottish Government appeals to the Court Of Session that it will not be resolved until after the 2026 election. So let it be said again: the truth is not just being delayed. It is being denied.