Publication - FOI/EIR release

Costs of legal services regarding former First Minister's judicial review: FOI release

Published: 17 Jun 2021

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

Published:
17 Jun 2021
Costs of legal services regarding former First Minister's judicial review: FOI release
FOI reference: FOI/202100184741
Date received: 24 Mar 2021
Date responded: 16 Jun 2021
Information requested

"Information contained in documents & discussions relating to, and all information contained in: fees, all fee notes & Faculty Services Fee notes, accounts & receipts - for costs, expenses & fees paid to:

  • Roddy Dunlop QC
  • Christine O'Neill QC

in relation to legal advice and all legal services provided to the Scottish Government relating to issues of Alex Salmond's judicial review against the Scottish Government and any related matter."

Response

I attach copies of most of the information you requested.

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 exemptions under sections 38(1)(b) (personal information) and 30(c) (substantial prejudice to effective conduct of public affairs) of FOISA apply to that information. The reasons for which these exemptions apply are set out below.

Some of the enclosed information includes information to which exemptions under section 36(1) (legal professional privilege) and a further category of section 30(c) (substantial prejudice to effective conduct of public affairs) would ordinarily apply. The exemption under section 36(1) covers material that is covered by legal professional privilege. As the long-standing Law Officer Convention (which is reflected in the Scottish Ministerial Code) prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter, the exemption at section 30(c) also covers information which would reveal the Law Officers' involvement in any matter.

A significant amount of information which would ordinarily fall within these exemptions is nevertheless being disclosed to you because, in the particular and unprecedented circumstances of this case Scottish Ministers decided to waive their legal professional privilege over legal advice provided to them during the judicial review. In his letter of 1 March 2021 to the Convener of the Scottish Parliament's Committee on the Scottish Government Handling of Harassment Complaints, the Deputy First Minister set out this decision and noted the unique circumstances. This letter can be found on the Committee's website, under the heading of "Evidence from the Scottish Government": Phase 3 - Judicial Review - Parliamentary Business : Scottish Parliament.

An exemption under section 38(1)(b) of FOISA (personal information), applies to some of the information requested because it is personal data of a third party, including the names and contact details of civil servants in grades below the Senior Civil Service. 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.

An exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to three areas of the information requested.

Firstly, an exemption under section 30(c) of FOISA applies because revealing the internal sources of the Scottish Government’s legal advice on the judicial review, 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 this and other legal issues. 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, an exemption under section 30(c) of FOISA applies to bank payment details for Brodies LLP and Faculty Services Limited which are contained in the fee notes. Placing bank account details into the public domain would be likely to result in the fraudulent use of those details, to the detriment of those entities. 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 general public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.

However, this is outweighed by the strong public interest in limiting fraudulent activity against entities and the wider banking system. Additionally, we observe that disclosing the bank account details of these entities would not meaningfully contribute to public scrutiny of the feenotes themselves, and accordingly the public interest in disclosure is very limited.

An exemption under Section 30(c) 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.

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.

For clarity, it might be helpful to also explain that in Document 1 we have extracted and provided the information that is within the scope of your request. Document 4 has also been redacted to exclude information that is outwith the scope of your request. In relation to Document 4, therefore, the summary information on the first page includes time spent (and the cost of that) on matters that are outwith the scope of your request.

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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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