External legal fees for Court of Session appeal XA10/23: FOI release

Information requested

How much money has the Scottish Government spent in total on appealing freedom of information requests about James Hamilton's report into Nicola Sturgeon during the Salmond Inquiry, with a full breakdown of costs?

Response

The net cost of external legal fees for the Court of Session appeal XA10/23 against the Scottish Information Commissioner’s decision 004/2023 was £73,024. This includes £27,470 paid to the Scottish Information Commissioner in judicial expenses.

With regard to the costs relating to the appeal lodged with the Court of Session on Monday 28 April 2025 against Decision Notice 065/2025 from the Scottish Information Commissioner, an exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to the information requested.

As the case is ongoing, this exemption applies because revealing the cost and source of the Scottish Government’s legal advice to date would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice.

Releasing information about the cost of legal advice, which would in turn disclose the source of that advice - particularly whilst the matter to which that advice relates remains live - would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

Releasing information about the cost of legal advice, disclosing the source of legal advice, would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code). The Law Officers Convention 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.

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.

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