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Publication - FOI/EIR release

James Hamilton QC investigation evidence submitted: 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 evidence submitted: FOI release
FOI reference: FOI/202100139187
Date received: 18 Jan 2021
Date responded: 15 Feb 2021
Information requested

- All evidence submitted to James Hamilton QC as part of his investigation into whether Nicola Sturgeon breached the Ministerial Code.

- Details of all meetings held by James Hamilton QC as part of his investigation into whether Nicola Sturgeon breached the Ministerial Code. Please include minutes, call logs, list of attendees, dates and duration of meetings, and subjects discussed.

-All correspondence received by James Hamilton QC as part of his investigation into whether she 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 evidence submitted to James Hamilton QC as part of his investigation into whether Nicola Sturgeon breached the Ministerial Code.
Some of the information you have requested is available from the Scottish Parliament’s website, because it was also submitted to the Committee on the Scottish Government Handling of Harassment Complaints, and has subsequently been published by the Committee. 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 link.
https://www.parliament.scot/HarassmentComplaintsCommittee/General%20documents/SP_SGHHC_-_FN42.pdf

While our aim is to provide information whenever possible, in this instance we are unable to provide 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.

- Details of all meetings held by James Hamilton QC as part of his investigation into whether Nicola Sturgeon breached the Ministerial Code. Please include minutes, call logs, list of attendees, dates and duration of meetings, and subjects discussed.

While our aim is to provide information whenever possible, in this case in this instance the Scottish Government does not have the information you have requested. The Scottish Government does not have the information you have asked for because no such meetings were held between Mr Hamilton and Scottish Government Ministers or staff of the Scottish Government within the period covered by your request.
This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

-All correspondence received by James Hamilton QC as part of his investigation into whether she breached the Ministerial Code.

I enclose a copy of most of the information you requested. We have interpreted this part of your request as being for correspondence sent by the Scottish Government to Mr Hamilton during the conduct of the investigation (i.e. from August 2020 to the date of the request).

Our response to request 202100139181, in which you request “all communication between the Scottish Government and James Hamilton QC in relation to the inquiry into whether Nicola Sturgeon breached the Ministerial Code”, also includes correspondence from the period January 2019 to July 2020 when the investigation was being established.

As noted above, while Mr Hamilton may or may not have received correspondence from third parties, he is independent of the Scottish Government and so we do not hold information that is held by Mr Hamilton (if any); we only hold correspondence which we have sent to him.

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 names and contact details of individuals in grades below the Senior Civil Service, and the personal contact details of third parties, 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.

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
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