Lord Advocate and legal advice: FOI release

Information requested

Question 1

1. You asked for all documentation held by the Scottish Government, including correspondence sent and received, internal correspondence, analysis, briefings and minutes/notes, about splitting the job of Scotland's Lord Advocate into two, from the last three months?

Question 2

2. How much money has the Scottish Government spent on external legal advice in the last 12 months, with a breakdown of how much has been spent on what?

Question 3

3. You asked: (i) “how many lawyers/advocates have said yes or agreed to take part in the juryless rape trials pilot,” and (ii) “can you supply all discussion and analysis undertaken by or for the Scottish Government about what happens if they all say no?”.

Question 4

4. Could you supply all documentation held by the Scottish Government, including correspondence sent and received, internal correspondence, analysis, briefings and minutes/notes, about Operation Newbiggin as written about here, from the last six months?

-https://www.bbc.co.uk/news/uk-scotland-scotland-politics-68570230

-Did the government take legal advice over this?

Response

Question 1

1. You asked for all documentation held by the Scottish Government, including correspondence sent and received, internal correspondence, analysis, briefings and minutes/notes, about splitting the job of Scotland's Lord Advocate into two, from the last three months?

Our Response to Question 1

I can confirm that in the last three months the Cabinet Secretary for Justice and Home Affairs has answered two Parliamentary Questions on the issue of consultation on the roles of the Lord Advocate, S6W 27235 and S6W 27925.

All answers to written Parliamentary Questions are available on the Parliament's website, the search facility for which can be found at Questions and answers | Scottish Parliament Website As is clear from the answers to these PQs the Scottish Government is considering options for the consultation on the roles of the Lord Advocate. Whilst your question asks about information in relation to splitting the job of the Scotland’s Lord Advocate in two, I have interpreted this as a request for information on the Scottish Government’s commitment to consult on this issue.

Attached at Annex A the information which can be provided in relation to your question. 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 s.29(1)(a) (policy formulation), section 30(b)(ii) (free and frank exchange of views for the purposes of deliberation, section 30(c) substantial prejudice to the effective conduct of public affairs, s36(1) (confidentiality of communication) and ,section.38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex B attached to this letter.

Question 2

2. How much money has the Scottish Government spent on external legal advice in the last 12 months, with a breakdown of how much has been spent on what?

Our Response to Question 2

The information we hold relates to external legal services expenditure – which would be a broader scope of activity than the provision of only legal advice.

Please find below information we hold in relation to that broader external legal expenditure, broken down by Scottish Government directorate.

The total spend incurred by the Scottish Government, on external legal expenditure, for the period April 2023 to May 2024 amounted to £10,203,980.35.

SG Directorate	Sum of Period Activity
DG Communities	£259,032.20
DG Corporate	£1,571,955.27
DG Economy	£188,035.16
DG Education and Justice	£7,075,288.69
DG Health and Social Care	£9,115.64
DG Net Zero	£1,098,084.07
DG Scottish Exchequer	£238.20
DG Strategy and External Affairs	£2,231.12
Grand Total	£10,203,980.35

Question 3

3. You asked: (i) “how many lawyers/advocates have said yes or agreed to take part in the juryless rape trials pilot,” and (ii) “can you supply all discussion and analysis undertaken by or for the Scottish Government about what happens if they all say no?”.

Our response to 3 (i)

The proposal to hold a pilot of single judge trials has not been enacted; it is part of the Victims, Witnesses and Justice Reform (Scotland) Bill that is currently being considered by the Scottish Parliament. Therefore this information is not held.

Our response to 3 (ii)

While our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600. The reason for this is that our searches have identified that a large number of documents fall within the scope of your request, spanning a lengthy time period, and it would take significant time to locate them and prepare them for release. Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. For example, you could restrict your request to a specific date range, or to documents sent to or between specific people, as this would reduce the number of documents that fell within scope. You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx

Question 4

4. Could you supply all documentation held by the Scottish Government, including correspondence sent and received, internal correspondence, analysis, briefings and minutes/notes, about Operation Newbiggin as written about here, from the last six months?

-https://www.bbc.co.uk/news/uk-scotland-scotland-politics-68570230

-Did the government take legal advice over this?

Our Response to Question 4

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section s.36(1) (confidentiality) of FOISA applies to the information, an exemption under section 30(b)(i) Free and Frank Provision of Advice applies to some of the information, and an exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information. The reasons why these exemptions apply are given below.

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. There is a very strong public interest in maintaining confidentiality of communications between legal adviser and client on administration of justice grounds. It is clearly in the public interest for lawyers to be able to provide free and frank legal advice to their clients, considering and discussing all issues and options, without fear that the advice might be disclosed and potentially taken out of context. It is also in the public interest that decisions are taken by the Government in a fully informed legal context. Ministers and officials therefore need high-quality, comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context, and with a full appreciation of relevant facts. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.

An exemption under sections 30(b)(i) (Free and frank provision of advice) of FOISA applies to some the information you have requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.

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 allowing a private space within which officials can provide free and frank advice and views before the Scottish Government reaches a settled public view. Disclosing the content of such free and frank exchange of views will substantially inhibit the communication of such matters in the future, which would not be in the public interest. As an individual case is a key starting point around the consideration of advice, the balance of the assessment around this is weighted even more in favour of withholding the information.

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, i.e. names/contact details of individuals, 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.

In response to your question of whether the government has taken legal advice over this, I can advise that the Government regularly seeks legal advice in order to ensure its decisions are taken in a fully informed legal context. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.

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.

FOI 202400418250 - Information Released - Annex A

File type

22 page PDF

File size

932.6 kB

FOI 202400418250 - Information Released - Annex B

File type

3 page PDF

File size

142.6 kB