The Documents That Cleared Sturgeon Remain Sealed
Benjamin Harrop is not, so far as the record shows, an especially prominent figure in Scottish politics. He is a man who submitted a freedom of information request. What he asked for was not gossip, or texts, or anything an editor would call a scoop: he wanted to see the internal discussions among ministers, advisers and civil servants about whether the government could legally refuse to release material gathered by James Hamilton KC, who in 2021 cleared Nicola Sturgeon of breaching the ministerial code. Not the evidence. The meeting about whether to hide the evidence.
The Scottish government said no, citing legal professional privilege. The Court of Session agreed, overturning a ruling from Scotland's Information Commissioner that the material should be disclosed.
That commissioner, David Hamilton (no relation to James, an irony the Scottish government did not arrange but has certainly enjoyed), is now asking the UK's Supreme Court to intervene. A single FOI request, filed after a report that took months to write, has produced a legal process now entering its fifth year.
The government's defence deserves to be stated properly rather than waved off. Ministers have released a great deal: eighteen bundles, more than 4,700 pages, some redacted, following a separate court battle. A spokesperson has pointed out that courts ordered protection for the identities of women who made allegations against Alex Salmond, and that releasing certain material would breach those orders and amount to contempt of court. John Swinney told parliament the redactions exist to prevent complainants being identified. None of that is spin. Protecting a rape complainant's identity is not a transparency failure; it is the law working as intended, and anyone arguing otherwise should say so plainly rather than shelter behind rhetoric that treats every withholding as equally sinister.
But Harrop's request has nothing to do with any complainant. It concerns the government's own deliberations about its own legal strategy, a category the Court of Session has now effectively placed beyond reach. It is the breadth of that ruling, not any single redaction, that has brought David Hamilton to the Supreme Court. His stated worry is precise: the judgment risks making legal privilege something close to an absolute exemption across Scottish FOI law generally, well beyond this inquiry, because the public interest test that is supposed to sit alongside it gets no real airing once privilege is invoked.
This matters more once you look at the pattern rather than the single case. The commissioner is currently juggling six separate appeals relating to the Sturgeon and Salmond inquiries. Last month he sought reassurance that ministers had actually complied with a 2024 order to release legal advice from an earlier appeal; having received an answer, he said he believed they had not, and was considering legal action. Separately, the large document bundle published in July had to be pulled from the government website and reissued, because, according to the permanent secretary Joe Griffin, additional redactions were needed. He called this regrettable, attributing it to the scale and complexity of publishing seven hundred documents. Scale and complexity is doing a great deal of work in that sentence.
Jackie Baillie's "cloak of secrecy" line is the kind of phrase that gets quoted and then forgotten, which is a shame, because underneath it is a genuinely structural question. The Freedom of Information (Scotland) Act 2002 was one of the flagship pieces of legislation of the new Parliament; devolution's founders wanted Holyrood to be more open than Westminster, not merely open enough. The exemption for legal privilege was written with a public interest test attached precisely so it could not become a blanket shield. Whether it has become one is now a question for judges nobody elected, interpreting a statute nobody currently in office wrote, about a report that itself concluded in 2021. At no point in that chain does an accountable person get to say: I decided this could stay secret, and here is why.
That is the actual scandal, and it has nothing to do with whether Sturgeon breached the code. She was cleared, and relitigating that finding is not the point. The point is that a Parliament founded on the promise of being the most accessible in Europe has spent four years and counting in litigation over whether the public may see how its government decided to keep documents from the public. Devolution's architects wanted decisions moved closer to the people who live with them. They did not anticipate that the closest decision of all, whether to tell you anything, would end up settled in a courtroom on Parliament Square.