John Swinney rules out judge-led inquiry into Nicola Sturgeon conduct probe row

First Minister John Swinney has said he has “absolutely no intention” of establishing a judge-led inquiry into a row over the Hamilton probe into former first minister Nicola Sturgeon following calls from both the Conservatives and Labour.

The government published a 101-page dossier at the weekend of emails, notes and other information relating to legal advice given to ministers regarding its failed appeal over a ruling by the Scottish Information Commissioner over a request for material pertaining to an inquiry into whether Sturgoen had breached the ministerial code.

Those documents revealed that while the government was told its appeal had a “reasonable prospect of success”, those chances were later “downgraded”.

But they also highlighted some unease about the relationship between the independent inquiry of James Hamilton and the Scottish Government, as the secretariat of the inquiry was seconded from the government and the civil servant involved had contact with Swinney.

In a statement to Holyrood on Tuesday, the first minister – who had set the remit for the inquiry in his role as deputy first minister at the time – said the civil servant was “not a special adviser but a non-political, career civil servant of impeccable record and repute”.

Swinney said that his contact with that civil servant has been entirely in relation to “practical issues” that came to him as the sponsor of the inquiry, and the first time he learned of any of the contents of Hamilton’s report was when it was sent to ministers on 22 March 2021 – the same day it was made public.

He added: “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.”

The report cleared Sturgeon of breaking the ministerial code, with Hamilton concluding the former first minister had not misled parliament on, nor attempted to intervene in the investigation of, the handling of allegations of harassment against her predecessor, Alex Salmond.

A freedom of information request was made not long after the conclusion of the inquiry for all evidence relating to it. 

This request was initially refused by ministers who claimed it did not “hold” it because Hamilton was acting independently of government.

The information commissioner argued that definition was too narrow, given the information was held within Scottish Government document management systems (albeit with restricted access), and instructed ministers to release it.

Ministers appealed the commissioner’s ruling but this was thrown out by the Court of Session in December last year. 

A second freedom of information request was made for the legal advice relating to that appeal. This was also first refused by ministers before the information commissioner ordered that it be released.

Swinney admitted that he “did not want to disclose” the information due to legal professional privilege, but had “reluctantly” agreed to do so. This was published on Saturday.

Scottish Conservative leader Russell Findlay accused the government of having spent “huge sums” to keep secrets from the public.

He argued that the civil servant seconded to the Hamilton inquiry was “hopelessly and fatally conflicted”, and suggested the first minister had only set out “some” of the contact he’d had with that person, not all.

Scottish Labour deputy leader Jackie Baillie said the contact between the civil servant and Swinney “raises huge questions about the independence of the process”.

Both Findlay and Baillie backed a judge-led inquiry into the situation, with Baillie adding: “The first minister should really agree unless, of course, he has something to hide.”

The first minister said: “I have absolutely no intention of commissioning a judge-led inquiry into all of this business, for the simple reason that I have disclosed the information that the commissioner requested of us – 101 pages of legally privileged information.”

Asked whether Sturgeon had had any contact with the civil servant seconded to the inquiry for its duration, Swinney replied: “Not to my knowledge.”

Earlier, at topical questions, parliamentary business minister Jamie Hepburn refused to name the civil servant who served at the inquiry’s secretariat as that person was below senior grade.

Swinney also defended the government’s decision to take the information commissioner to court over the ruling, saying the legal advice was “unambiguous” and “supported challenging the commissioner’s decision”.

He accepted the advice changed over time and “the prospects of the case did become less positive” – though this was after he left government in March 2023 following Sturgeon’s resignation – but added the rationale for the appeal remained unchanged.

Legal advice to government is not normally made public – a concept known as legal professional privilege, which ensures lawyers and client can speak freely and frankly. However in this instance the information commissioner felt the public interest outweighed this rule.

In a statement published alongside the dossier, the government said it proved decisions were “informed by appropriate analysis of the legal considerations”.

It added: “The released documentation confirms that ministers had been advised that there were reasonable prospects of success in taking an appeal.

“The documentation also shows that ministers had discussed the legal advice with the lord advocate, the most senior government legal adviser, who was content that there were proper grounds for appealing and who agreed with ministers that the decision should be appealed.”

Scottish Information Commissioner David Hamilton welcomed the publication of the dossier, though criticised this came at the “eleventh hour” and described the delay as “wholly unacceptable”.

He said: “We have now learnt that Scottish ministers were advised that prospects of winning this appeal were ‘not strong’ and indeed diminished as advice developed. It is therefore frustrating to know that my scarce resources were absorbed in an appeal that advisers pointed out was not the one to test the particular legal argument being deployed.

“The applicant’s request for information to which this appeal related was delayed for two and a half years which is wholly unacceptable and as a result the substantive information initially requested still remains under investigation.

“I will be corresponding with the permanent secretary to share these and further concerns.”