Supreme Court Asked to Settle the Sturgeon Inquiry Documents Row

The UK Supreme Court is being asked to rule on the Scottish government's refusal to release documents connected to the inquiry that cleared Nicola Sturgeon of breaching the ministerial code.

Ministers have cited legal professional privilege as grounds for refusing a freedom of information request from a member of the public.

What is being sought

Benjamin Harrop requested internal emails, messages and other communications about whether the government had a legal right to withhold the material in the first place.

That is a request one level removed from the underlying documents. He is not asking what the inquiry material said; he is asking to see the government's own deliberations about whether it was entitled to keep it secret.

There has been a long-running row over documents relating to the inquiry that cleared Nicola Sturgeon of breaking the ministerial code.

The procedural history

Information Commissioner David Hamilton ruled that the documents should be released. The Court of Session subsequently overturned that decision. Hamilton is now seeking permission to take the case to the UK's highest court.

Scotland's freedom of information law permits some requests to be refused where disclosure would compromise confidential communications between lawyers and their clients — but that exemption is subject to a public interest test.

Why the public interest test is the whole argument

Legal professional privilege is among the strongest protections in law, and for sound reasons: a client who cannot speak candidly to a lawyer cannot receive proper advice, and governments are entitled to legal advice like anyone else.

The difficulty is that the exemption is qualified rather than absolute under Scottish FOI. Someone has to weigh the value of confidentiality against the public interest in disclosure, and reasonable decision-makers can reach opposite conclusions on the same file — as the commissioner and the Court of Session have now demonstrated.

The recursive structure sharpens it further. If a government can claim privilege over its reasoning about whether privilege applies, the exemption becomes effectively self-certifying, and the public interest test has nothing to bite on.

What a ruling would settle

That is presumably why the commissioner wants the Supreme Court to look at it. The specific documents matter less than the principle: how far a public authority can extend privilege over its own decisions about transparency.

A judgment would apply well beyond this inquiry, and beyond Scotland's political dispute about it. Every Scottish public authority currently refusing a request on these grounds is operating under a rule that two courts have now read differently.

Permission to appeal has not yet been granted, and the Supreme Court takes only a small proportion of the cases put to it.

The original inquiry

The underlying dispute goes back to the independent inquiry that examined whether Nicola Sturgeon breached the ministerial code, and which cleared her. The documents at issue are not that inquiry's findings, which are public, but the material around how the government handled disclosure.

That distinction has kept the row alive long after the political controversy that produced it subsided. Requests of this kind persist because they concern process rather than personality, and process outlives the people involved in it.

Why commissioners take cases this far

An information commissioner appealing to the Supreme Court is unusual and expensive, and regulators do not do it to win a single file.

They do it when a lower court's reasoning would, if left standing, narrow their powers across every future case. The Court of Session's decision does exactly that: if privilege can be asserted over deliberations about privilege, a large category of government decision-making moves permanently outside the reach of the Act the commissioner is charged with enforcing.

That is the interest being defended, and it explains why a request from a single member of the public has reached the highest court in the United Kingdom.