Publication - FOI/EIR release

Civil Servants preparation in giving evidence to Committee for Former First Minister inquiry: FOI release

Published: 13 Jan 2021

Information request and response under the Freedom of Information (Scotland) Act 2002

Published:
13 Jan 2021
Civil Servants preparation in giving evidence to Committee for Former First Minister inquiry: FOI release
FOI reference: FOI/202000106713
Date received: 3 Nov 2020
Date responded: 12 Jan 2021
Information requested

Details of the preparation of civil servants for appearances ahead of witness sessions in the Alex Salmond Holyrood inquiry. I would like details of all civil servants to appear in person before the committee up to and including today's session [3 November 2020], including the Permanent Secretary.

There is no need to include future witnesses which will not appear until after today.

Please provide:

  • Details of all scheduled preparation that has been undertaken for each civil servant (please provide a breakdown of each). I.e the number of hours set aside to prepare for the hearings, and the dates on which this took place.
  • The nature of the preparation - I.e, was it time to prepare by themselves or more organised sessions. For example mock questioning of witnesses, discussion with legal experts, or any other form of preparation for the witness sessions. Please describe briefly the nature of each session.
  • For each session, please provide details of others who attended. I.e legal advisers, spads, ministers.
  • Please also make clear whether any external organisation/individual has been used to help witnesses prepare, and if so, which organisation/individual and how much this will cost the Scottish Government in total. If there is not yet a final figure, please provide the cost for preparation sessions held so far
Response

You asked for details of the preparation of civil servants for appearing as witnesses in the Alex Salmond Holyrood inquiry, which I have understood to be the Committee on the Scottish Government Handling of Harassment Complaints.

The civil servants who gave evidence to the Scottish Government Handling of Harassment Complaints Committee until 3 November, the date of your request, are Leslie Evans, Paul Cackette, Barbara Allison, Judith MacKinnon, Nicola Richards, and James Hynd.

Where you have asked for evidence on preparation “sessions”, the recorded information held by the Scottish Government has returned meetings and individual preparation time, which are set out in the response below.

In the first bullet point of your request, you asked for breakdown of scheduled preparation for each civil servant. There is no standard format in which civil servants are required to keep a record of their time and civil servants do not record the proportion of their time that they spend working on particular matters as a matter of course.

The preparation time may have involved holding diary space clear of meetings during the hours set aside for preparation but other priority business continued. The exact hours devoted to preparation were not recorded and extended beyond normal office hours and into their own time. We have attempted to provide you with the most complete record of scheduled appointments for each civil servant. The recorded information on the scheduled preparation time held by the Scottish Government is listed below.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure 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.

In the second bullet point of your request you ask to be provided with a description of the nature of the preparation. To the extent that the Scottish Government holds recorded information about the nature of the preparation, it is set out below. Where no description is provided, we are unable to provide some of the information you have requested because we do not hold recorded information about the nature of that  preparation. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

You may find it helpful to note the following information, which is being provided outwith FOISA because it arises from comments made by witnesses in the course of responding to your request (and so was not held at the time your request was made). During the timeframe of this query, witnesses report spending significant time preparing in advance of their appearances by reviewing the relevant timelines and documentation submitted to the Committee. 

With regard to the nature of the preparation, an exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. While our aim is to provide information whenever possible, insofar as you have requested information concerning the attendance of legal advisers in the second and third bullet points we are unable to provide the information you have requested because an exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to that information.

This exemption applies because revealing the source of the Scottish Government’s legal advice on civil servants’ evidence to the Committee on the Scottish Government’s Handling of Harassment Complaints, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on civil servants evidence to the Committee on the Scottish Government’s Handling of Harassment Complaints. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the 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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter.

Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter.

There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

In addition, in accordance with the Civil Service Management Code published by the Cabinet Office, civil servants involved in a formal inquiry as a consequence of their employment may be entitled to receive individual legal advice, and a number of staff did as part of their preparation. Accordingly, this exemption applies with regard to the source of the legal advice sought by some of the civil servants under the Civil Service Management Code because the effective conduct of public affairs requires that individuals participate fully in giving evidence to Parliamentary Committees and other inquiries, and in order to do so they may in certain circumstances require external legal advice.

Civil servants should be able to obtain legal advice in these circumstances in the same way as any other individual, without having to reveal the source of that advice. Were the identity of legal advisers routinely to be disclosed, it would lessen the willingness of external legal advisers to act, diminishing the support available to civil servants to enable them to participate fully in Committee proceedings, which would diminish the effectiveness of those proceedings and in turn constitute substantial prejudice to the effective conduct of public affairs.

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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in ensuring that civil servants are able to obtain legal advice freely in order to enable them to participate fully in proceedings of this sort. There is no public interest in diminishing the pool of legal advisers who may be prepared to act in these circumstances.

In the third bullet point of your request, you ask details of others who attended. Some of this information is indicated below. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption under section 38(1)(b) of FOISA (personal information) applies to that information.

This exemption applies because it is personal data of a third party, for example, civil servants who are not in the Senior Civil Service, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

You may wish to be aware, outwith FOISA, that the Scottish Government does not have the information you requested because no special advisers or Ministers were involved in the sessions in question.

In answer to your question on whether an external organisation or individual has been used to help witnesses prepare, while our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested (the name of any such organisation or individual) because an exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies that information, for the same reasons given above in answer to bullet point 3.

In answer to the final part of your fourth bullet point, the total net cost of providing that assistance as at the date of your request was £54,378.

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Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
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