Nicola Sturgeon has said she would be “blatantly breaching” the ministerial code if she released legal advice the Scottish Government received during a courtroom clash with her predecessor Alex Salmond.
Holyrood has voted for the advice to be released, something ministers have repeatedly refused to do so far.
After Wednesday’s defeat in the Scottish Parliament, Deputy First Minister John Swinney said they will consider the issue.
That led to Ms Sturgeon facing demands at First Minister’s Questions on Thursday as to when the information will be made public.
Tory MSP Margaret Mitchell called on the First Minister to confirm if the Scottish Government will comply with the result of the vote and when the documents will be made available.
Ms Sturgeon responded: “If I was to do what Margaret Mitchell has asked me to do there I would be blatantly breaching the ministerial code – perhaps that is what Margaret Mitchell wants me to do.”
The First Minister said the code sets out that “ministers must not divulge the contents of legal advice” although it says in “exceptional circumstances ministers may decide that he balance of public interest favours disclosure”.
In those circumstances they must obtain the prior consent of law officers before doing so, she explained.
Ms Sturgeon said consent to release legal advice will “only be given if there are compelling reasons”.
She added: “Ministers have to consider now the vote last night, the Deputy First Minister made clear ministers will do so.
“I have rightly, I think, recused myself from that decision and as John Swinney said to Parliament last night he will advise Parliament accordingly in due course of our response.”
Earlier, it was revealed Scotland’s top prosecutor has been asked to release any “relevant” material the Crown Office has to MSPs investigating the Scottish Government’s handling of harassment complaints against Alex Salmond.
Linda Fabiani, the convener of the committee conducting the inquiry at Holyrood, has written to Lord Advocate James Wolffe QC.
The Committee on the Scottish Government Handling of Harassment Complaints was set up after the former first minister won a legal challenge and £512,250 payout at the Court of Session over the way claims against him were dealt with.
In her letter to Mr Wolffe, the convener stressed MSPs are not seeking information on the Crown’s decision to prosecute Mr Salmond for a series of sexual offences, of which he was cleared by a jury following a trial earlier this year.
Ms Fabiani also made clear the committee is not considering “the ‘merits’ of the allegations or the conduct of the trial”.
The approach comes after Scottish Government director for communications for ministerial support and facilities Barbara Allison told MSPs she had obtained a copy of text messages sent between herself and Permanent Secretary Leslie Evans from the Crown Office as she no longer had them.
She said the exchange had “been retrieved from her mobile phone in the context of the proceedings in HMA v Alexander Salmond”.
After Mr Salmond’s successful legal challenge, Ms Evans sent a text message to Ms Allison saying the “battle maybe lost but not the war”.
Ms Fabiani has now told the Lord Advocate the committee wants to obtain “relevant information and evidence” that the Crown may have that could help with its investigation.