Scottish Government statement on publication of legal advice relating to court case against the Scottish Information Commissioner:
On 9 September 2024 the Scottish Information Commissioner issued a decision notice (193/2024) requiring the Scottish Ministers to disclose legal advice in connection with its Court of Session case against the Scottish Information Commissioner (case XA10/23).
The information had been withheld by the Scottish Government in response to a Freedom of Information request as it considered that the Government should have been able to receive the advice in confidence under “legal professional privilege” and that the public interest was not sufficient to override this exemption.
The Commissioner, in responding to an appeal from the requester, took a different view – that considerations favouring release in this case outweighed those for maintaining legal professional privilege.
That decision of the Commissioner was carefully considered by The Scottish Government and it was decided to release the information.
The material being disclosed outlines that Scottish Ministers took decisions informed by appropriate analysis of the legal considerations and on an important point of principle which was acknowledged as addressing a ‘sharp and important question of statutory interpretation’ in the Court of Session’s judgement.
The released documentation confirms that Ministers had been advised that there were reasonable prospects of success in taking an appeal. The documentation also shows that Ministers had discussed the legal advice with the Lord Advocate, the most senior government legal adviser, who was content that there were proper grounds for appealing and who agreed with Ministers that the decision should be appealed.
There is a longstanding convention, observed by Scottish, UK and other governments, that government does not disclose legal advice except in exceptional circumstances. This ensures that government can access full, frank and confidential legal advice, just as other organisations and individuals are able to. The ability to access such advice is central to the effective conduct of government in the public interest.
The Scottish Government disagrees with the Commissioner’s reasoning in his decision and considers that there were good grounds for a successful appeal to the Court of Session had it chosen to do so. It considers that it is important to emphasise that while minimising further cost to the taxpayer.
The Scottish Government’s publication of the material in this case does not set any precedent for its position on releasing other information that is subject to legal professional privilege. Nor does the Scottish Information Commissioner’s decision represent a binding legal precedent.
The Government will continue to apply the relevant exemptions, in line with the Freedom of Information (Scotland) Act 2002, and will follow the Scottish Ministerial Code in relation to legal advice.
It will also closely monitor Scottish Information Commissioner decisions relating to the release of legally privileged information and will refer them to the Court of Session if it considers that appropriate in future.
Welcoming the release of the information former SNP MP Joanna Cherry, a lawyer and a fierce critic of the Scottish Government, said: “This information is rather jumbled up & there are redactions which makes it difficult to follow but it is fascinating.
“On first reading there are three major takeaways. First, Scottish ministers made misleading statements to the Information Commissioner.
“Second, the appeal proceeded in the face of advice from counsel that the prospects of success were weak. And third the frequent redactions of the name of a civil servant whose actions appear to be central to the whole saga.”
On Wednesday, Scottish Information Commissioner David Hamilton published his own legal advice received in relation to a 2023 FOI decision which was appealed to the Court of Session by the Scottish Government.
Decision 004/2023 found that information relating to James Hamilton’s investigation into former first Minister Nicola Sturgeon under the Ministerial Code was held by the Scottish Government and should therefore be considered by it when responding to freedom of information (FOI) requests. The Court found in the Commissioner’s favour in its December 2023 ruling.
The Commissioner subsequently considered a request for copies of the legal advice received by the Scottish Government in relation to its decision to bring the 2023 appeal. This request had been refused by the Scottish Government. In a September 2024 decision, the Commissioner found that this legal advice should be disclosed.
The decision requires that this information be disclosed by 26 October 2024. The Commissioner has received notification that the Scottish Government will comply with this decision.
The Commissioner’s own legal advice received in relation to this case is published below.
The legal advice published below contains a small number of redactions of information. Where redactions occur, these relate to the name and job title of one official, and the supplier of the legal advice. Redactions have been made in order to prevent a breach of rights under the Data Protection Act 2018.
Read the legal advice received by the Commissioner in relation to this case.
Scottish Information Commissioner David Hamilton’s statement in response to the Scottish Government’s disclosure of legal advice, complying with Decision 193/2024:
“I welcome Scottish Government complying with my direction, albeit at the 11th hour.
“We have now learnt that Scottish Ministers were advised that prospects of winning this appeal were “not strong” and indeed diminished as advice developed. It is therefore frustrating to know that my scarce resources were absorbed in an appeal that advisers pointed out was not the one to test the particular legal argument being deployed.
“The applicant’s request for information to which this appeal related was delayed for two and a half years which is wholly unacceptable and as a result the substantive information initially requested still remains under investigation.
“I will be corresponding with the Permanent Secretary to share these and further concerns.”