Publication - FOI/EIR release

James Hamilton QC independent investigation: FOI release

Published: 18 Mar 2021

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

Published:
18 Mar 2021
James Hamilton QC independent investigation: FOI release
FOI reference: FOI/20210016129
Date received: 19 Feb 2021
Date responded: 18 Mar 2021
Information requested

1 - An Independent Investigation currently being led by James Hamilton QC is investigating possible breaches of the ministerial code by the First Minister. If he concludes that the FM did not knowingly mislead parliament as well as did not break other parts of the MC then I presume that the First Minister would not resign under the MC as she didn't break it?

2 - An Independent Investigation currently being led by James Hamilton QC is investigating possible breaches of the ministerial code by the First Minister. If he concludes that the FM knowingly misled parliament according to section 1.3 (c) of the ministerial code the First Minister resign would be required to resign immediately, is this correct?

3 - If a minister refused to resign under the MC after breaching it is there any legal method through which the MC code can be applied?

4 - The business or ministerial diary of the FM of Scotland, Cabinet Minister Shirley-Anne Somerville, and Deputy FM of Scotland concerning the days Monday the 9th of March 2020, Tuesday the 10th of March 2020, and Wednesday the 11th of March 2020.

Response

I note in this and in your previous correspondence regarding the Ministerial code you have cited FOI.

FOI gives you the right to request and receive the information held by public authorities. The right applies to any information held, It won't, for example, cover someone's thoughts or opinions, unless they've been recorded in some way.

For expediency we have provided answers to your previous queries outwith FOISA, rather than seek a remedy from you in terms of their invalidity. You note that you do not consider your earlier questions hypothetical because an investigation is underway. 

However, your previous questions (and 1-3 of this request) relate to actions that might result, depending on the outcome of that investigation.

As Mr Hamilton has not yet published his report, the potential outcomes remain hypothetical.

You may find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

Question 4 is a valid FOI as you are seeking recorded information held by the authority. The answer to that and to questions 1-3 are below.

1. As noted, an inquiry is currently being taken forward by Mr James Hamilton, one of the First Minister’s independent advisers on the Ministerial Code. In line with paragraph 1.7 of the Scottish Ministerial Code, the role of the independent adviser is to provide the First Minister with advice on which to base her judgement about any action required in respect of Ministerial conduct. It is a matter for the First Minister to decide how to respond to the findings of the independent adviser.

2. See answer 1 above.

3. It is not possible to answer this question, because the Scottish Government is unable to provide legal advice.

4. Details of Ministerial engagements in March are available here: Ministerial engagements, travel and gifts: March 2020 - gov.scot (www.gov.scot). Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.

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
EH1 3DG