Is the Scottish government above the law? The SNP-run devolved administration is being taken to court after it refused to comply with freedom of information legislation. While that might sound dry and technical, it is anything but: the information it refuses to disclose is evidence from the notorious – and notoriously messy – Alex Salmond inquiries.
That the Scottish Information Commissioner is forced to turn to the courts to get the Scottish government to comply with his decisions is another indication of a Scottish state that has become a law unto itself under the SNP
The former Scottish first minister was out of office, succeeded by his ambitious deputy Nicola Sturgeon, when details of a Scottish government investigation into sexual harassment allegations were leaked to the media in 2018. Salmond sought a judicial review and the Court of Session ruled the investigation was ‘unlawful’, ‘procedurally unfair’, and ‘tainted with apparent bias’.
The following year Salmond was charged with 13 counts of sexual assault but was acquitted on all charges following a trial at the High Court. He claimed there was a conspiracy against him inside the Scottish government, an accusation Sturgeon has called a ‘fabrication’. A parliamentary inquiry into the handling of the allegations found that Sturgeon had misled Holyrood; an inquiry headed by former Irish prosecutor James Hamilton cleared Sturgeon of any breach of the ministerial code.
Step forward Benjamin Harrop, a member of the public who lodged a freedom of information request for documents related to the Hamilton inquiry. The Scottish government refused on the grounds that disclosure would allow ‘jigsaw identification’ of some of Salmond’s accusers. Harrop appealed to the Scottish Information Commissioner, who issued a decision notice instructing ministers to hand over some documents that wouldn’t unmask the complainants by January 15.
They failed to comply, and a second deadline of January 22 was set, with a warning that the Commissioner would bring legal action if this deadline was not met. The deadline was not met. Current Scottish first minister John Swinney told the Scottish parliament on Thursday that the identities of the Salmond complainants were shielded by a court order and his government would not break the law.
The Scottish Information Commissioner, a former police detective named David Hamilton, announced on Friday that he was referring the Scottish government to the Court of Session, an unprecedented action in the history of the commissioner’s office. Hamilton says he is ‘asking the Scottish government to comply with the law not break the law’ and that his legal action was ‘about taking seven weeks to assess some files — and still we don’t have an intended completion date.’
That the Scottish Information Commissioner is forced to turn to the courts to get the Scottish government to comply with his decisions is another indication of a Scottish state that has become a law unto itself under the SNP. This is the same government which is still not complying with the Supreme Court’s judgment in For Women Scotland, which ruled that sex is biological in law and men who identify as women have no right to use women-only spaces and services. It is the same government which has fostered a culture of cover-up and secrecy over everything from a disastrous ferry-procurement process to a minister’s attempt to bill the taxpayer for his holiday data fees.
Polling continues to show the Nationalists in the lead ahead of May’s devolved elections, in part reflecting a supporter base motivated by the independence cause and willing to overlook almost any scandal to achieve secession. That leaves the law as the only recourse for the Commissioner or anyone else seeking to hold the Scottish government to account. It is not all that much of a recourse: while the Court of Session can find ministers in contempt of court for failing to comply with the Commissioner’s decisions, the first minister has an ultimate power of veto over the disclosure of information. In a sense, then, they are above the law, but what else is there?
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