Publication - FOI/EIR release

Legal advice pertaining to an independent Scotland joining EU: FOI release

Published: 14 Jul 2021

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

Published:
14 Jul 2021
Legal advice pertaining to an independent Scotland joining EU: FOI release
FOI reference: FOI/202100214144
Date received: 16 Jun 2021
Date responded: 13 Jul 2021
Information requested

Any government/ministerial communication with regards to any legal advice pertaining to an independent Scotland joining the EU. Period between January 2018 and June 2021.

Response

Atttached is a copy of some of the information 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 section 36(1) (legal advice) and section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are set out below.

As part of this release we are providing some communications relating to a previous Freedom of Information request; although the time frame of this request, from 23 June 2016 to 26 August 2019, is different from your request for information between January 2018 and June 2021.

Section 36(1) – legal advice
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.

Section 38(1)(b) – applicant has asked for personal data of a third party
An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, including the names of Scottish Government staff, 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.

About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

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
EH1 3DG