Footnote 5.2 of the 2024 Ministerial Code queries: FOI Review

Information requested

Original request 202400445734

1) Who was the author/who suggested to the FM to include footnote 5.2 "Information provided to the Independent Advisers for the purposes of their functions is provided in confidence."? within the 2024 ministerial code?

2) Any and all communications (minutes, whatsapps, emails, anything) and briefings within the Scottish Government (ministers, civil servants, SPADs, third parties, former and current independent advisors) regarding the creation of footnote 5.2 above, as well as any reference to discussions surrounding the sections of the ministerial code which reference the Independent Advisors/their role and investigations for allegations of breaking the ministerial code.

3) Was the subject or was there any reference of the Scottish Government's defeat in the court of session to the SIC in December 2023, the SIC decision in January 2023 (which resulted in the court appeal), or the ongoing SIC investigation into the original FOI (dated April 2021, revised February 2023: 202400214), or any other similar FOI requests asking for evidence from James Hamilton's investigation into the former FM discussed at any point from the information I have requested above in point 2? As well as the potential to prevent the release of any evidence given to an independent advisor investigation in the future discussed in point 2?

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

1) Who was the author/who suggested to the FM to include footnote 5.2 "Information provided to the Independent Advisers for the purposes of their functions is provided in confidence."? within the 2024 ministerial code?

2) Any and all communications (minutes, whatsapps, emails, anything) and briefings within the Scottish Government (ministers, civil servants, SPADs, third parties, former and current independent advisors) regarding the creation of footnote 5.2 above, as well as any reference to discussions surrounding the sections of the ministerial code which reference the Independent Advisors/their role and investigations for allegations of breaking the ministerial code.

3) Was the subject or was there any reference of the Scottish Government's defeat in the court of session to the SIC in December 2023, the SIC decision in January 2023 (which resulted in the court appeal), or the ongoing SIC investigation into the original FOI (dated April 2021, revised February 2023: 202400214), or any other similar FOI requests asking for evidence from James Hamilton's investigation into the former FM discussed at any point from the information I have requested above in point 2? As well as the potential to prevent the release of any evidence given to an independent advisor investigation in the future discussed in point 2?

I have concluded that the original decision should be confirmed, with modifications, for the reasons set out below.

I have understood your questions about footnote 5.2 of the Ministerial Code to refer to paragraph 5.2 in the Terms of Reference for the Independent Advisers on the Ministerial Code, which were published alongside the Ministerial Code on 17 December 2024.

In your request for a review you expressed dissatisfaction with the application of the exemptions in sections 30(b)(i) (free and frank advice), 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), 36(1) (legal advice) and section 38(1)(b) personal data, and the application of the public interest test where applicable.

I have carefully reviewed the application of the exemptions in light of your comments, and I have concluded that the original response should be upheld, with modifications.

Question 1

With respect to question one, it may help if I explain that information held with respect to advice to the First Minister on the Terms of Reference for the Independent Advisers on the Ministerial Code does not identify one individual ‘author’ of paragraph 5.2 in the way that you suggest, but rather that this issue was considered as part of the development and provision of advice to the First Minister on a range of matters concerning the role of the Independent Advisers on the Ministerial Code.

Interpreting your question as asking about all those involved in the development and provision of advice, having carefully reviewed the application of the exemption in light of your comments, I have concluded that the original decision should be upheld, with modifications.

Having carefully reviewed the information withheld, I consider the exemption in section 30(b)(ii) applies to some of the information requested because disclosure would, or would be likely to, substantially inhibit the free and frank exchange of views for the purposes of deliberation. The exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled view. The consideration of different options is a normal part of the policy development process.

In light of your comments I have reviewed the application of the public interest test. Taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate, and I recognise that there is public interest in the role of the Independent Advisers on the Ministerial Code. However, there is a greater public interest in allowing a private space within which officials can exchange full and frank views, as part of the process of exploring and refining the Government’s policy position. This private thinking space is essential to enable all options can be properly considered, based on the best available advice, so that good policy decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Section 38(1)(b) applies to some of the information because it is personal data of a third party, for example names of individuals or other personal data 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.

Having reviewed the information withheld, I further consider that some of the information requested is information is exempt under section 36(1) of FOISA (confidentiality of communications – legal advice privilege). Section 36(1) applies to the information requested because it relates to legal advice and is covered by legal professional privilege.

In light of your comments I have reviewed the application of the public interest test in this instance. Taking account of all the circumstances of this case, I have considered if the public interest in maintaining the exemption outweighs the public interest in disclosing the information. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, we consider in this case this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, including, as is the case here, in circumstances where legal advice has been taken and provided (in confidence) by the Scottish Government for the particular, limited purpose of detailed internal consideration of legal issues in relation to policy proposals on the framing and operation of the new Ministerial Code.

Outside of FOI, you may wish to note that the same provision contained in paragraph 5.2 of the Terms of Reference of the Independent Advisers on the Scottish Ministerial Code is included in paragraph 4.2 of the Terms of Reference for the (UK) Independent Adviser on Ministerial Standards, which states that “information provided to the Independent Adviser for the purposes of their functions is provided in confidence”.

Furthermore, paragraph 2.9 of the revised Scottish Ministerial Code, published on 17 December 2024, requires that “The findings of the Independent Advisers will be published in a timely manner after the case has been decided by the First Minister” (Scottish Ministerial Code: 2024 Edition - gov.scot). Information about the current and former Independent Advisers on the Ministerial Code, and the investigations carried out, are published online here: The Scottish Ministerial Code: independent advisers - gov.scot

Question 2

With respect to question two, I have carefully reviewed the application of the exemption in light of your comments, and I have concluded that the original decision should be upheld, with modifications. I enclose a copy of some of the information you requested.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested, because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank exchange of views would likely substantially inhibit the exchange of such views in future.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise 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 allowing a private space within which officials can exchange full and frank views, as part of the process of exploring and refining the Government’s policy position, in this circumstance in respect of the role of the Independent Advisers on the Ministerial Code. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled view. Disclosing the content of free and frank discussions on the Scottish Government’s deliberations would substantially inhibit such discussions in the future.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 allowing Ministers and officials a private space within which to explore and refine the Government’s position until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good policy decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

An exemption in section 36(1) applies to some of the information requested because it relates to legal advice and is covered by legal professional privilege.

In light of your comments I have also reviewed the application of the public interest test in this instance. Taking account of all the circumstances of this case, I have considered if the public interest in maintaining the exemption outweighs the public interest in disclosing the information. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, we consider in this case this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, including, as is the case here, in circumstances where legal advice has been taken and provided (in confidence) by the Scottish Government for the particular, limited purpose of detailed internal consideration of legal issues in relation to policy proposals on the framing and operation of the new Ministerial Code].

Question 3

In your request for a review you expressed dissatisfaction with the application of the exemption in section 17(1) FOISA (notice that information is not held).

I have carefully reviewed the application of the exemption in light of your comments, and I have concluded that the exemption was correctly applied.

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FOI 202500449679 - Information released - Annex

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