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Publication - FOI/EIR release

James Hamilton QC investigation remit correspondence: FOI release

Published: 16 Feb 2021

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

Published:
16 Feb 2021
James Hamilton QC investigation remit correspondence: FOI release
FOI reference: FOI/202100139181
Date received: 18 Jan 2021
Date responded: 15 Feb 2021
Information requested

- All communication between John Swinney and James Hamilton QC in relation to the inquiry into whether Nicola Sturgeon breached the Ministerial Code.

-All communication between the Scottish Government and James Hamilton QC in relation to the inquiry into whether Nicola Sturgeon breached the Ministerial Code.

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.

  • All communication between John Swinney and James Hamilton QC in relation to the inquiry into whether Nicola Sturgeon breached the Ministerial Code.

I enclose a copy of most of the information you requested.

While our aim is to provide information whenever possible, in this instance we are unable to provide a small amount of the information you have requested because an exemption under section 38(1)(b) of FOISA (personal information) applies to that information. 

This exemption applies because requested because it is personal data of a third party, in this case the personal contact details of a third party, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

  • All communication between the Scottish Government and James Hamilton QC in relation to the inquiry into whether Nicola Sturgeon breached the Ministerial Code.

I enclose a copy of most of the information you requested.

While our aim is to provide information whenever possible, in this instance we are unable to provide a small amount of the information you have requested because an exemption under section 38(1)(b) of FOISA (personal information) applies to that information. 

This exemption applies because requested because it is personal data of a third party, in this case the personal contact details of a third party, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

An exemption under section 30(c) (substantial prejudice to the effective conduct of public affairs) applies to some of the information.

This exemption applies because the information you have requested is information concerning the conduct of Mr Hamilton’s 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 information relating to Mr Hamilton’s conduct of the investigation would be likely to prejudice substantially his investigation because it would lead to an unwarranted focus on possible approaches to the preparation of, or approach used in the final report 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 discuss matters of process with the Scottish Government.

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 determine the details of how the investigation would be conducted, without that part of the process necessarily being put into the public domain. We consider that the Independent Advisor and Scottish public authorities and their staff (principally, but not exclusively, the Scottish Government) would be far more reticent in discussing different approaches to the process if there was no confidential space for these discussions to proceed.

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.

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Contact

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

The Scottish Government
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