Publication - FOI/EIR release

Harassment Committee inquiry legal fees costs: FOI release

Published: 16 Feb 2021

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

Published:
16 Feb 2021
Harassment Committee inquiry legal fees costs: FOI release
FOI reference: FOI/202100137923
Date received: 14 Jan 2021
Date responded: 11 Feb 2021
Information requested

"£54,378 was the figure obtained through a Freedom of Information request by the Daily Telegraph.

This was used on external assistance with regards to the Alex Salmond enquiry.

I would like to know who the money was paid to and in what capacity.

I would also like any internal Government correspondence regarding the transaction and relating to possible “coaching of answers” that has been widely reported in the newspapers."

Response

You asked for details concerning FOI 202000106713 on the preparation of civil servants for appearing as witnesses in the Alex Salmond Holyrood enquiry, which I have understood to be the Committee on the Scottish Government Handling of Harassment Complaints.

You asked who the money was paid to.

We are unable to provide the name of the individual / organisation who provided the legal advice because an exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to the information requested. 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. You asked in what capacity £54,378 was paid. The cost was in its entirety for legal advice. Under the terms of the Civil Service Management Code published by the UK Cabinet Office, civil servants are entitled to receive legal advice / representation in relation to their involvement in a parliamentary inquiry which arises as a result of matters connected to their employment.

You asked for “any internal Government correspondence regarding the transaction”. We have provided this correspondence regarding the transaction in the response to this request. As explained above, the name of the individual/organisation has been redacted because exemption section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to the information requested.

An exemption under Section 30(c) (substantial prejudice to the effective conduct of public affairs) of FOISA also applies to the provision of the government account codes for the transactions that are contained in some of the documents. These are withheld because quoting the account an invoice should be paid from allows any invoice to be matched to an equivalent purchase order raised by SG staff. Please note that in the correspondence we have released to you, the description ‘the authoriser’ / 'authorising officer' of the transactions refers to the technical operation of our payments system as opposed to the person making the decision about payment of legal fees for individuals.

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 in support of open and transparent government. However, this is outweighed by the public interest in withholding information about Scottish Government account codes to avoid weakening one of our key controls against fraudulent payment requests.

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, in this case, civil servants who are not in the Senior Civil Service, and to personal information such as contact telephone numbers. Disclosing this information 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.

You asked for information relating to “any internal Government correspondence…relating to possible coaching of answers”. Our aim is to provide information whenever possible, however, we wish to inform you that in this instance the Scottish Government does not have the information you have requested because Scottish Government Committee witnesses were not coached.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

About FOI

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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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