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Scotland’s information commissioner has accused the Scottish Government‘s legal directorate of acting as a “praetorian guard” for the First Minister rather than serving the public interest.
David Hamilton said the reluctance to release the so-called Salmond files was an illustration of what he described as a wider culture of institutional secrecy.
Earlier this year, the Scottish Government was found in contempt of court by the Court of Session over its delay in releasing the documents which relate to James Hamilton’s inquiry into whether Nicola Sturgeon breached the ministerial code.
Lady Poole ruled ministers had “deliberately failed” to meet a court-backed deadline to redact and disclose the material.
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“Sometimes I wonder if the government legal directorate thinks it’s some kind of praetorian guard for the First Minister,” Mr Hamilton told the Sunday Times. “I can’t square reality with the decisions that they make. The civil service needs to remember that it’s there to serve the people, not the government. They’re not there to get too protective of elected politicians.”
He added: “I’m one of many regulators, one of many independent chief execs of an organisation, so I don’t understand why people are saying, ‘You’re the only one standing up’.
“What’s everyone else doing? I’m not kotowed by the government or anyone. As far as I’m concerned, I’ve got a seal downstairs from the King which says I’ve got to do my job. That’s it.
“As an ex-cop, I see legislation as a thing to be used. People can be quite reticent about doing things that can seem a bit adversarial. That’s not me. You can’t just growl, you have to bite at times.”
During the interview, he also called on prosecutors to be more transparent about key decisions in Operation Branchform, including why Nicola Sturgeon was never charged and why a fraud probe into missing SNP donations was dropped.
He said the Crown Office and Procurator Fiscal Service’s lack of openness regarding the high-profile investigation was “not a good look.”
The probe into SNP campaign funds ultimately led to Ms Sturgeon’s estranged husband and former party chief executive, Peter Murrell, being sentenced to more than five years in prison for embezzlement.
While the Crown Office indicated police had assessed that Ms Sturgeon should not face charges, Police Scotland denied making recommendations and insiders suggested detectives wanted to question the former First Minister further.
“The Crown Office is an interesting one, because never more has there been questions about some of their decisions,” Mr Hamilton said.
“Now, I’m not saying they’re the wrong decisions. But ‘no, we’re not telling you’ is not a good look.
“And when they did say some things it went contrary to what Police Scotland were saying, which raises interesting questions. These are totally conflicting versions of events, which merits further scrutiny.”
While Freedom of Information decisions by the Crown Office cannot be appealed to the commissioner under current law, Mr Hamilton confirmed he is prepared to use his statutory powers to compel bodies like Police Scotland to release materials where it serves the public interest.
Potential disclosures could include Ms Sturgeon’s written police statement or the “advice and guidance” report submitted by detectives to prosecutors.
“Just because an exemption [under FoI laws] is there doesn’t mean you need to use it. I think the Crown could go much further on the transparency side of things,” Mr Hamilton said.
“There’s a set of exemptions you can see easily applying, but the public interest test is a difficult one and depends on the arguments that are made. You’ve got to listen to submissions and that’s the good thing about it. You don’t go in with any preconceptions.”
Questions also remain over why around £600,000 of donations solicited from independence supporters for a referendum campaign that never occurred did not lead to a separate fraud prosecution.
The funds were raised on the explicit basis of being “ring-fenced,” but were spent elsewhere.
Last week, lawyers acting for Stuart Campbell, the pro-independence blogger behind Wings Over Scotland, issued a letter before action threatening judicial review over Police Scotland’s handling of the matter, citing legal advice from Roddy Dunlop KC that the actions amounted to embezzlement.
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A Scottish Government spokesman said: “Scotland’s freedom of information laws are the strongest in the UK and the Scottish Government has responded to more than 3,800 FoI requests since the start of this year, with more than 96% on time.
“Our commitment to public service reform focuses on delivering on the things that matter most to the people of Scotland.”
The Crown Office and Procurator Fiscal Service said: “We recognise the public are interested in understanding how criminal cases are investigated and prosecuted.
“At the same time, the justice system depends on information being considered within a confidential process.
“Evidence that is used in court enters the public domain. Other material may not form part of criminal proceedings and remains subject to important legal protections.”
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Scottish Government lawyers acting as 'praetorian guard' for FM, says watchdog – The Herald
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