Lord Advocate Scottish Cabinet meetings attendance dates: FOI release

Information requested

1. "Please list all the dates when the current Lord Advocate, Dorothy Bain QC, attended Scottish Government Cabinet. Please provide this information from 6 May 2021 to the present date."

2. "When the Lord Advocate has attended Cabinet, the Cabinet’s agenda for that meeting as well as the reason the Lord Advocate was in attendance at the meeting. Please provide this information from 6 May 2021 to the present date."

Response

In response to your first question, the current Lord Advocate, the Rt Hon. Dorothy Bain QC, who was formally appointed on 18 June 2021, attended Scottish Cabinet meetings (either virtually or in-person) on the following dates between 6 May 2021 and the date of your request, 27 January 2022:

• 13 July 2021
• 3 August 2021
• 20 August 2021
• 14 September 2021
• 21 September 2021
• 28 September 2021
• 12 October 2021
• 19 October 2021
• 26 October 2021
• 2 November 2021
• 16 November 2021
• 23 November 2021
• 30 November 2021
• 7 December 2021
• 14 December 2021
• 21 December 2021
• 29 December 2021
• 11 January 2022
• 18 January 2022
• 25 January 2022

The Solicitor General for Scotland, Ruth Charteris QC, also appointed on 18 June 2021, attended Cabinet on behalf of the Lord Advocate on the following dates between 6 May 2021 and the date of your request, 27 January 2022:

• 24 August 2021
• 31 August 2021
• 7 September 2021
• 5 October 2021
• 5 January 2022

The previous Lord Advocate, the Rt Hon James Wolffe QC, attended Cabinet on the following dates between 6 May 2021 and the appointment of the current Lord Advocate on 18 June 2021:

• 1 June 2021
• 8 June 2021

There was no Law Officer representation at Cabinet on the following dates between 6 May 2021 and 27 January 2022:

• 21 May 2021
• 25 May 2021
• 15 June 2021
• 22 June 2021
• 17 August 2021
• 8 November 2021

In response to your second question, the Lord Advocate is not a member of Cabinet but she, or the Solicitor General on her behalf, attends with the agreement of the First Minister when required in order to provide legal advice and to represent her Ministerial interests.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information under this part of your request because an exemption under section 30(b)(ii) (the free and frank exchange of views for the purposes of deliberation) applies to it. The reasons for applying this exemption are set out below.

Paragraph 2.1 of the Scottish Ministerial Code provides that "the privacy of opinions expressed and advice offered within the Government should be maintained" at all times. Cabinet papers, including Cabinet agendas, are essential elements which support and assist collective discussion in the private space which Ministers need to reach agreed positions.

The weekly meeting of the Scottish Cabinet is the highest decision-making forum within the Scottish Government, and it follows that all information considered by Cabinet must be handled with great care.

Properly functioning Cabinet processes are generally recognised to be of vital public interest: Cabinet government is based on the principle of collective responsibility, which the Scottish Ministerial Code defines in the following terms:

"The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Government should be maintained. … The internal processes through which a Government decision has been made should not normally be disclosed." (Scottish Ministerial Code, 2018 edition, paragraphs 2.1 and 2.4)

Cabinet papers, including agendas, are invariably produced on the assumption that they will not be disclosed until a significant amount of time has elapsed.

Section 30(b)(ii) (the free and frank exchange of views for the purposes of deliberation) recognises the need to allow Ministers some private space for discussion. 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 maintaining the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can reach a final decision. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy-/decisionmaking process.

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