Decision to order disclosure of alleged Alex Salmond misconduct 'justified'

A watchdog’s decision to order disclosure of information relating to a probe into the alleged misconduct of Alex Salmond was justified and in the “public interest”, a court heard.

Advocate David Johnston KC told senior judges on Thursday that the need to have the data, which is covered by lawyer-client confidentiality, available outweighed the need to keep it confidential.

The Inner House of the Court of Session had earlier heard the Scottish Government’s lawyer, Christine O’Neill KC, say that the information sought was covered by legal professional privilege. In law, this covers confidential advice given to clients by lawyers – the courts have repeatedly ruled that such information should be kept confidential.

However, Mr Johnston, who is acting for the Scottish Information Commissioner, David Hamilton, said that the information sought was of such importance that it needed to be revealed.

He said that this need outweighed the need to maintain LPP.

Mr Johnston added that freedom of information legislation did exempt material covered by legal professional privilege – but he said this wasn’t an absolute and that such information, in the correct circumstances, could be disclosed.

He said: “Disagreement with the commissioner’s conclusion does not give rise to an error of law.”

He added: “Legal professional privilege is a matter of the most fundamental importance, but section 36 is a qualified exemption, not an absolute bar to disclosure.

“The commissioner must balance the very strong public interest in maintaining legal professional privilege against public-interest factors which speak in favour of disclosure.

“Disclosure promotes transparency and accountability in relation to the activities of public authorities.

“There is a strong public interest in understanding decision-making at the highest levels of government.”

Mr Johnston was addressing Scotland’s most senior judge, the Lord President Lord Pentland and his colleagues Lord Malcolm and Lord Clark.

He is acting in an appeal which was brought to the country’s highest civil appeal court by the Scottish ministers.

The Government wants the judges to overturn a decision made by the Information Commissioner, who enforces the enactment of Freedom of Information legislation, in March 2025.

Mr Hamilton’s decision arose from a request for information made by a member of the public called Mr Benjamin Harrop, on December 7, 2023, to the Scottish Ministers requesting that they disclose “all emails, text messages, WhatsApps, minutes and other forms of communications” between “Ministers, SPADs, civil servants and other Scottish Government officials regarding… the court case known as The Scottish Ministers v The Scottish Information Commissioner”.

Mr Harrop wanted the information up to and including December 6, 2023.

The request came as senior appeal judges issued a decision on December 6 in another case involving the information commissioner and Mr Harrop.

Mr Harrop made a request to the Scottish Ministers asking them to release all written evidence gathered by independent investigator James Hamilton during a probe in 2019.

The investigation was triggered after former first minister Nicola Sturgeon referred herself to the independent advisers on the Scottish Ministerial Code for an alleged breach on January 13, 2019, whilst she was still in office.

Her alleged breach was said to concern whether she failed to record meetings and phone calls in accordance with the code, and/or attempted to influence the conduct of the internal investigation into Mr Salmond’s alleged behaviour whilst he was in office as first minister.

He was later acquitted in March 2020 following a trial at the High Court in Edinburgh on 13 charges, including sexual assault, indecent assault and attempted rape.

Mr Hamilton investigated and determined that Sturgeon had not breached the code.

In that case, the Inner House ruled the information commissioner was right to rule against the Scottish Government’s refusal to release information about Mr Hamilton’s probe.

The Scottish Ministers responded to Mr Harrop’s December 7 request on January 9, 2024 – the government, however, withheld information from his request on several different grounds.

One of the exemptions relied upon by the Scottish Ministers was section 36(1) of the Freedom of Information (Scotland) Act 2002 (“FOISA”) – that information covered by legal professional privilege does not need to be disclosed.

This prompted Mr Harrop to apply to the Commissioner to review whether the Scottish Ministers were entitled to make that decision.

Mr Hamilton accepted that the information being withheld was legally privileged, but he found that the legislation meant that it did not automatically mean it could be kept secret.

The Commissioner decided they had failed to do so and ordered the information to be disclosed.

The Scottish Ministers instructed lawyers to appeal the decision to the Inner House.

The ministers claim the information commissioner “misdirected” himself as to the proper approach to be taken to the public interest test and failed to follow correct legal procedures in making his decision.

On Thursday, Ms O’Neill told the Inner House that material covered by LPP should remain confidential, and any attempt to redefine the principle could have future consequences.

She added: “Legal professional privilege is a fundamental right, long established in the common law.

“Clients will be reluctant to be candid with their lawyers unless they can be confident their communications will remain confidential.

“That chilling effect applies not only to those seeking advice, but also to those giving it.”

At the end of the proceedings, Lord Pentland told lawyers that he and his colleagues wanted time to consider their decision.

He added: “The court is most grateful to counsel for their considerable assistance and to those instructing them.

“Obviously, we’ll take some time to reflect on matters and issue our opinion as soon as it’s practicable.”