Legal advice regarding parents withdrawing children from National Standardised Assessments: FOI release

Response
1. Please confirm whether the Scottish Government has sought legal advice regarding whether parents are able to withdraw their children from the new Scottish National Standardised Assessments.

I can confirm that the Scottish Government did take appropriate legal advice regarding whether parents are able to withdraw their children from the Scottish National Standardised Assessments.

2. If so, please also confirm whether more than one legal opinion has been sought.

While our aim is to provide information whenever possible, we are unable to provide the information you have requested because exemptions under sections 30(c) and 36(1) apply to that information.  The reasons why these exemptions apply are explained below.

3. If advice has been sought, please include it in this release as well.

While our aim is to provide information whenever possible, we are unable to provide the information you have requested because an exemption under section 36(1) - legal advice applies to that information.  The Scottish Ministerial Code is clear that Ministers must not divulge either the source or content of legal advice, other than in exceptional circumstances. The reasons why this exemption applies are explained below.

 

Question 2
Section 30(c) – prejudice to effective conduct of public affairs
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to all of the information requested in question 2. Disclosure of information as to whether more than one legal opinion was sought would be likely to lead to undue scrutiny and potentially inaccurate or misleading conclusions being drawn. This would be likely to impair the Government’s ability to take its policies forward effectively.  This, in our view, would constitute substantial prejudice to the effective conduct of public affairs in terms of the section 30(c) exemption. 

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, there is a strong countervailing public interest in enabling the Scottish Government to determine how it seeks legal advice without facing external pressure or concerns that particular conclusions may be drawn from the fact that legal advice on a matter was sought on a particular on any particular number of occasions. It is in the public interest that all organisations including the Scottish Government are able to seek and obtain legal advice on a confidential basis as and when they require it in order to effectively conduct their business, and do so in accordance with their obligations, in particular Ministers’ obligation to act within the law at all times.  

Questions 2 and 3
Section 36(1) – legal advice
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to all of the information requested in questions 2 and 3 because the information concerned either is legal advice  or is intrinsically linked to the process of the provision of legal advice in the context of theconfidential relationship between lawyer and client. Accordingly,  disclosure of the content of the legal advice and information about whether more than one opinion was sought would breach legal professional privilege

This exemption is subject to the ‘public interest test’.  Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.  We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate.  However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.  The release of such information is likely to be appropriate only in highly compelling cases.  This has been recognised by both the Scottish Information Commissioner and the courts.

 

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