NextFin News - The Scottish Government has secured a pivotal legal victory in its long-running battle over transparency, as the Court of Session ruled on Friday that ministers were within their rights to withhold legally privileged documents related to the investigation into former First Minister Nicola Sturgeon. The decision by the Inner House, delivered by Lord Malcolm, Lord Pentland, and Lord Clark, effectively overturns a 2025 mandate from the Scottish Information Commissioner, David Hamilton, which had sought to force the disclosure of sensitive communications and legal advice.
The ruling centers on a Freedom of Information request initiated by Benjamin Harrop in early 2023, seeking "all emails, text messages, WhatsApps, and minutes" involving ministers and special advisers regarding the independent probe conducted by James Hamilton KC. That investigation, which concluded in 2021, had cleared Sturgeon of breaching the ministerial code during the government’s botched handling of harassment complaints against her predecessor, Alex Salmond. While the government initially claimed it did not hold the records, subsequent legal challenges forced a change in stance, leading to a standoff over the limits of legal professional privilege (LPP).
Lord Malcolm, writing for the court, emphasized that the "fundamental importance" of legal privilege applies to public authorities just as it does to private individuals. The judges found that the Information Commissioner had committed an "error in law" by suggesting that the public interest in disclosure automatically outweighed the protections of LPP. Crucially, the court noted that Hamilton’s decision appeared to be influenced by his "unhappiness" with the government’s conduct during the investigation—an "illegitimate factor" that the judges ruled had clouded the legal test for disclosure.
The Information Commissioner, David Hamilton, has been a vocal critic of the Scottish Government’s transparency record since taking office. Known for a rigorous, often confrontational approach to FOI enforcement, Hamilton recently stated he could no longer trust ministers to handle certain files "unsupervised." However, this judicial rebuke suggests that his zeal for transparency may have overstepped the statutory boundaries of his office. In a statement following the ruling, Hamilton noted he would "reflect on the Court’s decision" while considering the costs to public finances, though he remained "struck" by the court's reasoning regarding non-compliance in related cases.
From a constitutional perspective, the ruling reinforces the "candour" required for effective governance. If legal advice given to ministers were routinely subject to public disclosure, the fear of future publication could inhibit the "open and candid discussion" necessary for sound policy-making. This view is widely held by government legal departments across the UK, who argue that the erosion of LPP would lead to a "chilling effect" where sensitive advice is either not sought or not recorded in writing.
Conversely, transparency advocates argue that the ruling creates a "black box" around high-stakes political scandals. By allowing the government to shield communications under the banner of legal privilege, the court may have inadvertently made it harder for the public to scrutinize how the Sturgeon-Salmond fallout was managed behind closed doors. Critics of the government’s handling of the affair point out that over 4,500 pages of documents already released were heavily redacted, often containing errors that further obscured the timeline of events.
The immediate impact of the ruling is a cessation of the threat of contempt of court charges against the Scottish Government, which had been looming if they continued to defy the Commissioner’s disclosure orders. It also sets a high bar for future FOI requests involving legal advice. While the court acknowledged that the exemption for LPP is not "absolute," it made clear that the threshold for overriding it on public interest grounds remains exceptionally high, particularly when the Information Commissioner’s reasoning is deemed to be motivated by procedural frustrations rather than pure legal necessity.
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