Scotland’s highest civil court has ruled a watchdog went too far when it ordered the Scottish government to release confidential legal correspondence.
The Court of Session in Edinburgh upheld an appeal by ministers against a decision by the Scottish Information Commissioner, who had demanded the disclosure of internal legal documents related to a freedom of information battle.
The case dates back to a long-running dispute over access to material from an investigation into whether a former First Minister breached the Scottish Ministerial Code. After the government lost an appeal on whether certain documents were ‘held’ by it, a requester asked for all internal emails and communications about that appeal, including legal advice.
The government refused, citing legal professional privilege (LPP) – the centuries-old principle that what passes between a lawyer and their client remains private.
Under Scotland’s freedom of information laws, this type of material is not automatically exempt. Instead, authorities must weigh the public interest in disclosure against the public interest in keeping the advice confidential.
The Commissioner sided with the requester, ordering the government to release the documents. He noted that the withheld material was described as ‘standard official level correspondence’ and argued disclosure would serve the intense public interest in the original ministerial code investigation.
But the three appeal judges disagreed. They said the Commissioner had given too little weight to the fundamental importance of legal professional privilege, which Lord Hoffmann once called ‘a fundamental human right.’
The court ruled that while freedom of information laws have chipped away at absolute confidentiality for public bodies, legal privilege still demands ‘clear, compelling and specific justification’ before it can be overridden. The Commissioner had failed to provide that.
The judges also criticised the Commissioner for focusing on public interest in the original code investigation, which they said was only tangentially related to the legal advice about a narrow point of law.
They wrote: ‘Litigation involving public authorities will often involve matters of intense public interest. In such cases, if anything, it is even more important that effective and frank legal advice can be sought and received.’
Photo: Walkerssk/UnSplash
In related news:
Westminster City Council loses appeal over £255,000 levy charge
High Court injunction blocks eviction of Brixton Plaza traders
Leave a Reply