Supreme Court asked to rule on dispute over Sturgeon inquiry documents

"Wings Over Scotland" is a prominent political blog in Scotland, known for its critical stance on the Scottish government and its pro-independence, albeit often contrarian, viewpoint. Harrop’s contributions to the site have often focused on freedom of information (FOI) requests and the perceived lack of openness from ministers and civil servants. His latest endeavour, which has now reached the precipice of Supreme Court consideration, specifically targets material relating to the internal discussions among ministers, advisers, and civil servants concerning whether certain documents gathered by James Hamilton could be legitimately withheld under an FOI exemption.

To fully grasp the gravity of this dispute, it is crucial to understand the context of the James Hamilton inquiry. This independent investigation was commissioned to determine whether Nicola Sturgeon, then First Minister, had breached the Scottish Ministerial Code in her handling of complaints made against her predecessor, Alex Salmond. The inquiry, led by James Hamilton, a former Director of Public Prosecutions in Ireland and an independent adviser on the Ministerial Code, became a focal point of intense political drama and public interest. Its findings, ultimately clearing Sturgeon of any breach, were delivered amidst a highly charged political atmosphere where accusations of cover-up and impropriety were rife. The very establishment of the inquiry underscored the deep divisions and mistrust that had emerged within the SNP and the wider Scottish political establishment following the complaints against Salmond.

Harrop’s particular information request sought to shed light not just on the substance of the Hamilton inquiry, but on the process by which the Scottish government decided what information about that inquiry should or should not be made public. He was interested in the deliberations that occurred behind closed doors: the emails, memos, and legal advice exchanged between officials as they navigated the difficult terrain of balancing public interest with the desire to protect internal government communications. This specific focus on the government’s internal strategies for handling FOI requests themselves makes the case highly significant, as it probes the very mechanisms of transparency rather than simply the content of a particular decision. It asks whether the public has a right to know how its government decides what it can keep secret.

Initially, some information was indeed divulged in response to Harrop’s FOI request. However, the Scottish government invoked legal privilege over a significant portion of the correspondence. Legal privilege is a fundamental principle that protects confidential communications between a client and their legal adviser from disclosure. Governments frequently utilise this exemption to safeguard legal advice received from their own lawyers, arguing that such protection is essential for them to obtain frank and full legal counsel without fear of it being made public. Critics, however, often contend that this privilege is sometimes overused by public bodies to shield politically inconvenient information from public scrutiny, thereby undermining the spirit of freedom of information legislation.

The dispute eventually escalated to the Court of Session, Scotland’s supreme civil court. After careful consideration, the Court of Session ruled in favour of the Scottish government, determining that the contested documents were indeed protected by legal privilege and therefore did not have to be disclosed. This decision was a setback for Harrop and for advocates of greater government transparency. It reaffirmed the government’s right to maintain the confidentiality of certain internal legal discussions, even when those discussions pertain to the transparency of other sensitive public inquiries. For Harrop, however, the Court of Session’s ruling represented not an end, but a further justification for appeal. He believes that the public interest in understanding how the government strategizes to withhold information outweighs the claim of legal privilege in this particular instance, arguing that the court may have erred in its judgment and that a higher authority needs to weigh in on the matter to set a clear precedent.

The decision to appeal to the Supreme Court of the United Kingdom elevates the case to a level of national constitutional significance. As the final court of appeal for civil cases in the UK, the Supreme Court’s judgment will carry immense weight, not only for Scotland but potentially for other devolved administrations and the UK government itself. A ruling in Harrop’s favour could fundamentally redefine the boundaries of legal privilege for government internal discussions, particularly those concerning FOI exemptions. It could establish a precedent that makes it significantly easier for citizens to access information about how their governments decide what to disclose and what to withhold. Conversely, a ruling upholding the Court of Session’s decision would solidify the existing interpretation of legal privilege, potentially making it harder for future FOI requests to penetrate the inner workings of government decision-making on transparency matters. The implications for future governmental accountability and public trust are therefore profound.

Scottish Labour’s acting leader, Jackie Baillie, has been a vocal critic of the Scottish government’s transparency record, and her comments underscore the broader political context of this legal challenge. She claimed that "too often the SNP operates under a cloak of secrecy," a sentiment echoed by various opposition parties and civil society groups. Baillie added, "This legal challenge could have significant implications for the disclosure of information. However, it should not take lengthy legal disputes to get answers from the SNP government. We need to see an end to the culture of cover-up that the SNP has created and a renewed commitment to openness and integrity in government." These remarks reflect a wider perception that the Scottish government, after many years in power, has become increasingly insular and resistant to scrutiny. Incidents such as the deletion of WhatsApp messages by ministers during the pandemic, and other protracted FOI battles, have fuelled accusations that a "culture of cover-up" has taken root. The Harrop case, therefore, is not an isolated incident but part of a larger narrative concerning governmental transparency in Scotland and the public’s right to know.

This ongoing dispute over Sturgeon inquiry documents is inextricably linked to the wider saga surrounding former First Minister Alex Salmond. Before his untimely death from a heart attack in October 2024, Salmond was pursuing a separate civil case against the Scottish government, seeking damages arising from the unlawful handling of complaints made against him. The background to this involved the Scottish government’s internal investigation into allegations of sexual misconduct against Salmond, which he vehemently denied. A judicial review in 2019 found the government’s process for investigating these complaints to be "tainted by apparent bias" and "unlawful," leading to a significant payout of public funds to Salmond for legal costs. Subsequently, Salmond was acquitted of all criminal charges at trial. His civil case sought further compensation for the reputational and financial damage he argued he had suffered due to the government’s flawed process.

Following Salmond’s death, the legal rights to that significant civil case have been taken over by Paul McManus, a millionaire businessman and former rock musician. McManus has publicly stated his intention to continue the action, underscoring the deep-seated belief among Salmond’s supporters that the Scottish government must be held fully accountable for its actions. While Harrop’s FOI case and Salmond’s civil claim are legally distinct, they both stem from the same tumultuous period in Scottish politics and both shine a spotlight on questions of governmental integrity, process, and transparency. Both cases, in their own way, challenge the Scottish government’s narrative and seek to compel greater openness, whether through the disclosure of internal deliberations or through a comprehensive assessment of damages for alleged misconduct. The Supreme Court’s potential involvement in the Harrop case therefore adds another layer of complexity and scrutiny to a period that continues to cast a long shadow over Scottish political life.