Legal privilege v freedom of information: the case heading to the UK Supreme Court
The UK Supreme Court is being asked to decide whether the Scottish government was right to withhold documents linked to the inquiry that cleared Nicola Sturgeon of breaching the ministerial code. The case could reshape how Scotland's freedom of information laws interact with a long-standing legal protection called legal professional privilege.
The application comes from the Scottish Information Commissioner, David Hamilton. He is seeking permission to appeal to the UK's highest court after the Court of Session — Scotland's senior civil court — overturned his decision that the documents should be released. BBC News
At the centre of the dispute is a freedom of information (FOI) request made by a member of the public, Benjamin Harrop. He asked for internal emails, messages and other communications about whether the Scottish government had a legal right to withhold material connected to the ministerial code inquiry. Scottish ministers refused, citing legal professional privilege — a rule that protects confidential communications between lawyers and their clients. BBC News
Hamilton ordered the documents' release. The Scottish government challenged that decision in the Court of Session, where the case — The Scottish Ministers v The Scottish Information Commissioner, reference XA10/23 — was heard on 6 December 2023. The court's Inner House overturned the commissioner's ruling and found in favour of ministers. Scottish Courts
Hamilton said he was concerned the ruling had wider implications, making it too difficult to obtain legally privileged documents through Scotland's FOI regime. BBC News
Scotland's freedom of information law does allow information to be refused where disclosure would breach confidential communications between lawyers and their clients. That exemption, however, is subject to a public interest test: the public authority must weigh the public interest in disclosure against the public interest in keeping the privilege. The Court of Session's decision turned on how that test should be applied. BBC News
The procedural history adds further texture. In January 2026, Hamilton was taking Scottish ministers to court after they missed a deadline to release the documents. BBC News The material was eventually released by Scottish ministers on 24 February 2026. Judiciary of Scotland
The fact that the documents were ultimately disclosed does not resolve the legal question. Hamilton's push to the Supreme Court is directed at the precedent set by the Court of Session on the scope of legal professional privilege under FOI law. If the Supreme Court grants permission and hears the appeal, its judgment would bind all public authorities operating under the Scottish FOI regime and could influence how similar privilege exemptions are interpreted across the UK's other jurisdictions, where the legal framework differs.
The Supreme Court sits as the final court of appeal for civil cases across the United Kingdom and for criminal cases from England, Wales and Northern Ireland. It takes cases of the greatest public or constitutional importance. UK Supreme Court
The broader context here is one of recurring tension between the Scottish government's insistence on preserving legal confidentiality and the transparency obligations imposed by the Freedom of Information (Scotland) Act 2002. Legal professional privilege is a long-established common law right, and public authorities routinely rely on it to protect sensitive legal advice from disclosure. But FOI legislation builds in a public interest override precisely to ensure that privilege is not used as a blanket shield against legitimate scrutiny, particularly where matters of ministerial conduct are concerned.
The Sturgeon ministerial code inquiry has already drawn intense political and public interest. The question of what advice the Scottish government received, and how it decided to deploy privilege to withhold that advice, goes to the heart of how transparently the Scottish government operates.
For practitioners, the case will be watched for what the Supreme Court says about the threshold for the public interest test when legal privilege is engaged. A ruling that narrows the Court of Session's approach could make it easier for requesters to obtain legally privileged material where the public interest is strong. A ruling that upholds it would entrench ministers' ability to withhold. Either way, the decision would set the controlling precedent for Scotland's FOI regime and carry persuasive weight elsewhere in the UK.
