Court of Session
Credit: Lauren [CC BY-SA 2.0]

The Campaign for Freedom of Information in Scotland is relieved the Court of Session has confirmed the Scottish Information Commissioner correctly understood his statutory function to determine whether a public body is entitled to withhold certain information under section 26(c) of Scotland’s 24-year-old FoI law.

The public body that holds the information cannot act as judge and jury on whether this absolute exemption applies and the responsibility rests with the Commissioner to reach his own view. The Court rejected the argument that he must in some way defer to the view of the public authority holding the information without even seeing it which would have rendered FoI law practically useless. The Court has upheld the power which makes FoI matter – independent legal enforcement of the public’s right and public bodies’ duties.

The case was heard on 22nd September and the arguments put forward by Scottish ministers finally settled on the centrality of Murray v HM Advocate [2022] in determining whether the information should be disclosed. However, when ministers refused the two information requests submitted, in undertaking the internal reviews and in their submissions to the Commissioner as part of the appeal process, there had been no reference to the decision in Murray or any suggestion that any of the information before the Commissioner would breach the test in Murray. Had ministers cited the case, there may have been no need for an appeal because the tests set out in Murray would have been dealt with in the Commissioner’s decisions.

Although ministers are intent on withholding the information, they have still not won that point as the case has been remitted back to the Commissioner to reconsider his decisions in the light of the court’s opinion and the terms of the judgment in Murray.

This Decision impacts on the FoI appeals process as it requires the Commissioner to make his determination not just on the submissions received and places an additional investigatory responsibility to identify and consider relevant cases and matters when determining individual cases.

This will exacerbate an already challenging situation as appeals to the Commissioner have soared, increasing by 83 per cent in the last year. The consequences will be immediate and significant for staff and presumably increase the number of occasions external legal services are sought.

As Scottish ministers brought the appeal, they cannot complain about the Scottish Consolidated Fund picking up the tab for the Scottish Parliament’s proportionate uplift in the Commissioner’s budget to cover the additional costs.

In its Programme for Government, ministers have undertaken to work with Parliament to consolidate the number of Commissioners “while protecting their functions.” This process must be positive and add value rather than diminish the effectiveness of powers Parliament has decided Commissioner’s should have. As we know from global experience, there are many non-legislative ways to weaken enforcement of people’s rights and providing insufficient staff and resources are two of the most common.

It is exactly 20 years since Parliament passed the Scottish Commission for Human Rights Act when MSPs decided to change legislative approach, rejecting the Scottish Executive’s plan to establish a Human Rights Commissioner. The Act bans the Commission from providing “assistance to or in respect of any person in connection with any claim or legal proceedings to which that person is or may become a party.” The term “assistance” includes advice, guidance and grants.

The total ban was relaxed in 2024 due to Section 12 of the UN Convention on the Rights of the Child (Incorporation) Scotland Act. Its funding is theoretically not impacted by minister’s cost cutting efforts, but many hope the ban will be lifted and its budget increased so the Commission can investigate and adjudicate cases involving a breach of human rights. Therefore this Court of Session judgement is timely as Parliament will be clearer about the extent of resources needed for the Commission to fulfill a robust, regulatory function.

Carole Ewart is Director of CFoIS