Chamber and committees

I am absolutely crystal clear with Parliament. Let me just read to Parliament an extract from the minute of the meeting of 13 March 2023, paragraph 7:

“DFM decided that the Commissioner’s Decision should be appealed to the Court of Session.”

I am owning that decision. It was my decision—nobody else’s. I took the decision, which was narrated on 13 March, because I was advised that I had a legal basis for exercising that judgment. That is a matter of public record.

Some of those issues will be affected by the decisions taken by the independent commissioners to determine how an inquiry should be proceeded with.

Given the fact that I set out in my statement to Parliament in September that I want the commissioners to be able to exercise that judgment independently of ministers, it would feel to me to be inconsistent for ministers to specify the basis on which commissioners should act. I want to keep that as open as possible in order to give commissioners the judgment, but I will reflect further on the point that Mr Whitfield has put to me.

Mr Rennie has his dates muddled up, because I was not warned by legal advisers or civil servants about the arrangements for supporting the inquiry prior to it being established. All that came after the event, so we are in the area of hindsight. At the time, I was given no advice that indicated that we were proceeding in a fashion that was not the normal approach to take.

Mr Rennie raises a significant point, which I am mindful of and which I am giving consideration to in my revisions to the ministerial code that I announced in the programme for government statement in September. I want to make sure that ministers are held to the highest standards of probity and that we have the strongest and most robust arrangements in place for handling these matters. I might reflect on the issues that Mr Rennie raises with me, because I recognise them to be substantial issues that have to be assured and command public confidence on an on-going basis.

To go back to the parliamentary inquiry—I will put this as delicately as possible—I took some time to be persuaded about disclosing legally privileged information, because of the principle that Jackie Baillie and I put into statute in 2002 that protects the legal professional privilege of the Government. I wanted to protect that position, and that was the issue that I had difficulties with, as I made clear. I reluctantly agreed to the release of those documents.

In trying to help the committee in its deliberations, the Lord Advocate at the time went to the committee and briefed its members, one of whom was Jackie Baillie, about the substance of the legal advice that was put forward. The Lord Advocate gave that advice in good candour.

When the legal advice was published, it demonstrated that what the Lord Advocate had told the committee was absolutely what was in the legal advice, so it is beyond me to understand why Jackie Baillie has to sully people’s character and reputation on an on-going basis.

Yesterday, her leader criticised my public reputation. Where is he today to say to my face what he was prepared to say to cameras? He will not come here and say it to my face. That is appalling.

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. I will move a motion of condolence in Parliament tomorrow.

I am providing this statement to Parliament in response to requests from other parties. On 3 August 2020, acting as Deputy First Minister, I set out the remit for James Hamilton to examine the self-referral of the then First Minister under the Scottish ministerial code. I did that as the minister who was delegated to sponsor the process, given that 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 that related to allegations against her.

I formally initiated the process, and I sponsored the process in the Government. In setting out that factual information, which the Parliament has known since 2020, I make one point crystal clear—the first time that 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 commissioner ruling that related to Mr Hamilton’s report. The material centres on a decision notice issued by the Scottish Information Commissioner that required the Scottish ministers to disclose legal advice—specifically, it required us to release legal advice in relation to a previous Court of Session case that the Scottish ministers took against the commissioner himself.

Despite the rather convoluted detail, the key principles that are 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 that the public interest in maintaining that privilege is outweighed by the public interest in the disclosure of legal advice.

The importance of that fundamental legal principle is reflected in the FOI legislation that the Parliament passed in 2002 under the Labour-Liberal Democrat Scottish Executive. As I understand it, exactly the same position is taken by every Government in the United Kingdom, including the devolved Governments and the UK Government. As a result, it is incredibly rare for legal advice to be disclosed.

However, in responding to an appeal from an FOI request, the commissioner 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, although it would have been possible to appeal, I decided—after consulting the Lord Advocate, which I am obliged to do under the ministerial code—to release the information. It was published on Saturday.

I turn to the substance of the legal advice. It shows that, when the decision to go to court was made, it was taken on the advice of King’s counsel. I will quote directly from the conclusions of that advice, which said:

“I consider that there are reasonable prospects of success”.

In the decision to challenge the commissioner’s decision, the view of the Lord Advocate, as the most senior legal adviser to ministers, was sought. It was equally robust. I will now quote from the published minute of her advice, which says that

“there were 3 sound arguments”

and that the commissioner’s decision “should be tested” in court. The legal advice was unambiguous. It supported challenging the commissioner’s decision, and I took that decision.

I left the Scottish Government shortly after that point, but work continued in the Government to prepare for the case. The material that was published on Saturday shows that, during that time, the legal advice on the prospects of the case became less positive. Crucially, however, the advice to ministers of 30 May 2023 remained crystal clear. It concluded:

“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”.

When the case came to court, the court stated in its judgment that the issue was

“a sharp ... question 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 ... question of statutory interpretation.”

In short, it was a perfectly rational decision by ministers to go to court.

Therefore, the original accusation that was made in the case, which was that ministers acted against legal advice in deciding to challenge in court the original decision of the Scottish Information Commissioner, has been disproved by the legal advice that was published at the weekend.

That having been the case, concern has now shifted to the arrangements for the secretariat that provided support to James Hamilton as he carried out his work. As is normal in circumstances where the Government establishes short-term inquiries, that secretariat was drawn from the civil service. It should be noted that that was known at the time when Mr Hamilton began his work.

I wish to be clear at this point that the individual who was chosen to undertake that work was not a special adviser but a non-political career civil servant of impeccable record and repute. Despite that being known at the time, concerns have now been raised that a civil servant provided the secretariat function. Those concerns stem from the comments that are contained in the material that has been 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. However, the KC stated:

“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 narrated that the secretariat engaged on such issues as paying for legal advice. Those practical issues came—rightly—to me, as the sponsoring minister, for agreement, because that was my role.

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 October 2020, the secretariat informed my office via email of correspondence from the parliamentary committee’s clerking team to the secretariat, telling it that Mr Hamilton’s written evidence to the committee would be published the next day. That email was duly acknowledged.

On 9 October 2020, a submission from the secretariat to me 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. They were submitted by the secretariat on 3 November 2020 in a formal submission, and they set out that Mr Hamilton could investigate any aspects of the ministerial code that arose within his remit. That 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 responses that were to be issued to requests that 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 to arrange a meeting between me and Mr Hamilton—it took place some days later—and I issued a letter to Mr Hamilton via the secretariat to thank him for undertaking his work.

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, which is that the first that 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.

All that material has been released, and the Scottish Information Commissioner has indicated his satisfaction with the Government’s response to any request that he has received to date on that question. That has been addressed.

No. I have narrated those contacts to Parliament today. I do not know whether they form the entire collection of all those contacts, but they are all of an operational and practical nature, to ensure that the proper conduct of the inquiry could be established on a practical basis.

Russell Findlay makes a number of points about the transparency of Government information, but 101 pages of legally sensitive material that should, in my view, be covered by legal professional privilege were published, on my watch, on Saturday. Mr Findlay is skirting past that fact.

On the roles of the civil servant and of Mr Hamilton, I simply say that Mr Hamilton, as an independent commissioner, was in full control of the entire process and that he operated in line with the remit that I published for him. All the issues that Mr Findlay put to me were in the public domain at the time of the institution of the inquiry.

I say to Mr Findlay that I have absolutely no intention of commissioning a judge-led inquiry into the whole business, for the simple reason that I have disclosed the information that the commissioner requested and that there are 101 pages of legally privileged information that Mr Findlay could look at, at his leisure, if he wished to, in order to inform the contribution that he makes to Parliament. I have absolutely no intention of commissioning a judge-led inquiry.

I am certain that that provision has always been in the ministerial code—it has certainly been in the code throughout my term in office as a minister. The ministerial code says that the fact and content of opinions or advice given by the law officers, either individually or collectively, must not be disclosed publicly without their authority. In taking the step that I took at the weekend, I had first to seek the Lord Advocate’s agreement before I could proceed.

I assure Lorna Slater that the development of procedures to deal with the very issues that she has raised—which are legitimate issues of substance—has been addressed by the Government. Subsequent to that, I gave a series of updates to the Finance and Public Administration Committee as Deputy First Minister before I left office to assure the committee that that was happening in practical effect. My recollection is that that process was concluded to the satisfaction of the committee, but, if I need to change the record on that point, I will do so in writing to Lorna Slater. My recollection is that the committee was satisfied with the progress that had been made to address the substantial points that Lorna Slater put to me.