Summary

  • Scottish Information Commissioner David Hamilton asks the UK Supreme Court to revisit a 2026 Court of Session ruling that Hamilton says miscalibrated the legal professional privilege exemption in Scotland’s freedom of information law.
  • The Court of Session overturned Hamilton’s earlier disclosure order and endorsed the Scottish government’s invocation of privilege over material linked to the inquiry that cleared former First Minister Nicola Sturgeon of breaching the ministerial code.
  • Hamilton frames the appeal as a precedent contest over whether the Court of Session’s “exceptionally compelling” disclosure threshold misreads the Scottish Parliament’s stated intent behind the FOI Act.
  • Hamilton’s appeal proceeds alongside a separate civil damages action, taken over by businessman Paul McManus after Alex Salmond’s October 2024 death, that runs on a parallel legal track — making the FOI appeal’s outcome a structural question about future privilege claims, not just this one.

In a freedom-of-information regime, how a court weighs legal professional privilege against the public interest in disclosure shapes who can be held accountable. Scotland’s Information Commissioner David Hamilton is asking the UK Supreme Court to revisit a 2026 Court of Session ruling that Hamilton says miscalibrated that balance. The ruling endorsed the Scottish government’s refusal to release documents linked to the inquiry that cleared former First Minister Nicola Sturgeon of breaching the ministerial code. The appeal will turn on a single legal question with structural reach: what threshold should apply when a public authority invokes legal professional privilege over material a requester seeks under FOI law? That question matters far beyond this request — every future FOI claim against legally privileged material in Scotland will be answered against the precedent the appeal either sets or refuses to disturb.

The threshold the appeal targets

The 2026 Court of Session ruling Hamilton is challenging — [2026] CSIH 15, written by Lord Malcolm with the Lord President and Lord Clark concurring — applied a balancing test that the Scottish Information Commissioner now says miscalibrated the statute. The ruling held that only “exceptionally compelling” reasons could justify ordering disclosure of legally privileged material, a weighting the FOI statute does not specify on its face. Hamilton’s position is that the statute leaves room for the public interest to weigh against privilege in some circumstances; the ruling’s effect, in his framing, is to remove that room.

Hamilton made the legislative-intent argument explicit. “It is my view that this ruling runs contrary to the parliament’s clear intention behind the FOI Act,” he said in a statement. “There are significant implications and risks placed on the public’s right to access information because of this ruling – it is therefore clearly in the public interest that I seek to challenge this at the Supreme Court.” Hamilton’s framing locates the dispute inside the statute: the law, as drafted, contemplates the public interest weighing against privilege in some circumstances, and the Court of Session’s threshold forecloses that weighing.

An interpretive reading of the dispute points to the same conclusion: the gap is interpretive rather than statutory. The FOI Act permits refusal on legal professional privilege grounds, subject to a public interest test, but the statute itself does not specify how that balance should be struck. That threshold has been set instead by case law — first by Hamilton’s earlier ruling and now by the Court of Session’s reversal of it. The interpretive gap is where the structural conditions of disclosure get decided.

The parties and how they connect

A stakeholder map of the dispute shows a hub-and-spoke network centred on the Scottish government, with the 2018–2019 Sturgeon–Salmond political rupture running through the network as a structural backbone.

Salmond challenged the way the Scottish government handled harassment complaints against him, and in 2019 government lawyers conceded the process had been unlawful and procedurally unfair. The fallout triggered allegations that Sturgeon had breached the ministerial code through her handling of contacts with Salmond and by misleading the Scottish Parliament about what she knew of the process and when. James Hamilton KC, the independent adviser on the ministerial code, conducted the 2021 inquiry that concluded Sturgeon had not breached the code. In a separate criminal case, Salmond was cleared in 2020 of sexually assaulting nine women.

The freedom of information request at the centre of the present dispute was filed by Benjamin Harrop, who has said he joined the SNP in 2014. Harrop sought internal emails, messages and other communications about whether the Scottish government had a legal right to withhold material gathered by James Hamilton KC. While some information was eventually released, the government claimed legal professional privilege over some correspondence; Hamilton initially ruled the documents should be disclosed, but the Court of Session reversed that ruling. Harrop has written on the Wings Over Scotland website about his efforts, claiming the Scottish government has a “pathological aversion to transparency and accountability.” Harrop’s adversarial disclosure posture against an SNP-led government, taken while he says he remains a party member, is an intra-party accountability vector the source reports but does not label.

Three independent routes converge on the Scottish government: from Harrop via the FOI mechanism; from James Hamilton KC via the ministerial-code inquiry mechanism; and from Scottish Labour’s acting leader Jackie Baillie via the political-parliamentary mechanism. Baillie framed the legal challenge in opposition terms: “This legal challenge could have significant implications for the disclosure of information,” Baillie said. “However, it should not take lengthy legal disputes to get answers from the SNP government.” Baillie added: “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.” Baillie has separately claimed that too often “the SNP operates under a cloak of secrecy.”

Salmond died of a heart attack on 12 October 2024. Before his death, Salmond had been pursuing a separate civil case against the Scottish government, seeking damages arising from the unlawful handling of complaints against him; millionaire businessman and former rock musician Paul McManus has since taken over the legal rights of that case and has said he will continue the action.

How each party frames the dispute

The four principal parties — Hamilton’s office, the Scottish government, Baillie, and Harrop — frame the appeal differently. The choice of framing affects how the dispute is read at the UK Supreme Court’s permission stage and in public.

Hamilton’s framing centres on legislative intent. The dispute, in his account, is about whether the Court of Session correctly interpreted the FOI Act’s public interest test. The Scottish government’s framing centres on live litigation. A Scottish government spokesperson said the matter is subject to live litigation and it would not be appropriate to comment on the substance. That posture protects the government’s argument without conceding points, but it also forfeits any opportunity to engage the legislative-intent argument Hamilton has put on the record. Baillie’s framing centres on political culture: in her telling, the appeal is evidence of an SNP pattern rather than a single legal decision. Harrop’s framing centres on a transparency campaign: the appeal is a test of whether the Scottish government can be made to release information it does not want to release.

At the UK Supreme Court, only Hamilton’s frame — and the government’s procedural response to it — will be on the formal record. The other frames shape the political backdrop the court does not adjudicate. The facts of the ruling itself are not in dispute; what is contested is the framing of what the ruling does.

Who benefits from each outcome

The appeal’s payoff structure for each party runs along three possible outcomes.

If the Supreme Court refuses permission to appeal, the Court of Session threshold becomes the settled rule. The Scottish government benefits: its privilege claim is not only endorsed but generalised into a precedent that applies to every future FOI claim against legally privileged material. Hamilton’s office loses the leverage its specialist determination normally provides. Future FOI requesters inherit a higher disclosure bar with no obvious path to escalation.

If the Supreme Court grants permission and rules for disclosure, the threshold moves back toward the public-interest side of the statute. Hamilton’s office benefits: its institutional authority to enforce FOI against privileged material is restored. The Scottish government pays a one-time reputational cost for having defended the strict-privilege threshold and inherits an ongoing precedent that narrows future privilege claims.

If the Supreme Court grants permission and rules for privilege, the precedent is strengthened beyond the Court of Session’s level. The government benefits more than under simple refusal, because the highest court in the United Kingdom has now weighed in. Hamilton’s office suffers a deeper institutional loss: not only is the threshold high, but the regulator’s escalation has confirmed the high threshold as correct.

Hamilton’s decision to escalate is consistent with reasoning backwards from these outcomes. If he does not escalate, the worst-case is locked in regardless. If he does escalate, the downside of refusal equals the downside of not escalating, but a non-zero probability exists that the Supreme Court will lower the threshold. Escalation weakly dominates acceptance. The government’s refusal to comment is consistent with the same reasoning from the other side: any substantive comment risks conceding a point or signalling that the privilege claim is contestable rather than settled. Silence preserves the government’s position across all three outcomes.

What happens next

The Supreme Court must first decide whether to grant permission to appeal. That decision turns on whether the case raises a point of law of general public importance. Hamilton’s argument that the Court of Session’s threshold miscalibrates the statute is at least debatable, so permission is plausible but not certain.

If permission is granted, the appeal proceeds on the substantive question: what threshold should apply when a public authority invokes legal professional privilege over material a requester seeks under FOI law? The Scottish government’s standing defence is that the Court of Session applied the statute correctly. Hamilton’s office will likely argue that the statute contemplates a public-interest weighing the ruling forecloses.

If permission is refused, the Court of Session ruling stands. The disclosure question for the contested records is settled; the precedent question is settled in the government’s favour; and Hamilton’s office retains its statutory authority but loses its leverage on legally privileged material.

In parallel, McManus’s continuation of Salmond’s civil damages action proceeds on its own legal track. Whether or not Hamilton’s appeal succeeds, the damages claim will be litigated separately. The two tracks share an originating political rupture — the 2018–2019 Sturgeon–Salmond falling-out — but do not causally couple in the present. A win for disclosure at the Supreme Court does not advance McManus’s damages claim; a loss does not delay it.

Questions for the next story

Four questions can be carried forward. First: does the Supreme Court treat the Court of Session’s “exceptionally compelling” threshold as a settled interpretation of the statute or as an open question? The framing at the permission stage will signal which way the court is leaning. Second: does the Scottish government’s refusal-to-comment posture persist into the substantive hearing, or does the government shift to a substantive defence if permission is granted? Third: how does the McManus-continued civil action develop, and does any disclosure in that case affect the political backdrop of the FOI appeal? Fourth: does the UK Information Commissioner’s Office or any transparency NGO file an amicus brief at the permission stage, and if so, what institutional weight does that carry?

These questions determine whether the FOI appeal is read as a narrow statutory question or as a structural test of the Scottish government’s posture on transparency. The answer will shape how the next round of FOI requests — over Sturgeon-era material and beyond — is processed.

The Main Street Independent Analysis integrates multiple analytical lenses under news-floor discipline. It explains disputes under their reported terms and does not adjudicate them. Facts not in dispute are stated as such; framing findings describe the telling rather than the intent of any named individual.

Analytical techniques used in this piece

This analysis applies the methods below. Each links to a short, plain-English explainer you can read and reuse.

Relationship Mapping
Extracts the network of ties among people, institutions, and entities.
Root-Cause Analysis
Traces a symptom back along its causal chain to the conditions that actually generated it.
Strategic Interaction (Game Theory)
Models a situation as a game — players, moves, payoffs, and likely equilibria.