Law Society of Scotland: FOI release

Information requested

An explanation as to ‘why the Law Society of Scotland is not listed by you as a public authority under the FOIA 2002 - this means that freedom of information requests cannot be made to them’.

Response

When considering requests that pose questions of a specific and factual nature such as yours, the Scottish Government’s obligation under FOISA is to provide a factual answer based on the relevant recorded information it holds. We have therefore not sought to provide you with copies of the various documents referred to in this response. However, where relevant documents are already in the public domain we have provided internet links, in the hope that these will be helpful to you.

If you wish to receive sight of other documents referred to in this response please email us afresh at foi@gov.scot to request these, quoting reference number 202400426941. It may be necessary for us to make some redactions to these documents, for example to protect the personal data of individuals mentioned in them. Nevertheless, we should be able to consider any such request relatively simply and would endeavour to respond to you as quickly as possible.

I should also clarify that we have understood your request to relate to the Freedom of Information (Scotland) Act 2002 (FOISA), rather than the Freedom of Information Act 2000 (FOIA). Whilst FOIA applies to public authorities in England, Wales, and Northern Ireland, and to UK-wide public authorities, FOISA covers devolved public authorities in Scotland.

Before addressing your question directly, I would first highlight that the Scottish Government’s Regulation of Legal Services (Scotland) Bill, currently being considered by the Scottish Parliament aims to provide for a modern regulatory framework designed to promote competition and innovation while also improving the transparency and accountability of legal services regulation and the legal complaints system in Scotland. If passed, the Bill would provide that the Law Society of Scotland would become subject to FOISA, in respect to its exercise of its regulatory functions.

This is reflective of outcomes from the 2021 ‘Consultation on reform of legal services regulation in Scotland’, in which two thirds (66%) of respondents agreed that regulatory functions should become subject to Freedom of Information (see: Legal services regulation reform: consultation analysis -gov.scot (www.gov.scot)). In addition the 2019 ‘Freedom of Information International Review: Scope of Bodies Included’, suggested that bodies which exercise administrative authority, including professional licensing and standard setting organisations, could be an area where there would be merit in extending coverage of FOI law. These considerations are reflected in the Policy Memorandum for the Bill.

To respond to your request, we have carried out a search of our records for information relevant to the question of why the Law Society of Scotland is not currently designated as Scottish public authority for the purposes of FOISA. An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information we have found 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.

However, to explain the reasons why the Law Society of Scotland is not already subject to FOISA, I can refer to the Policy Memorandum for the original Freedom of Information Scotland Bill. Paragraphs 25–33 provide information about the institutional coverage of FOISA. The original Bill had application across the Scottish public sector, covering various public authorities listed in Schedule 1, such as the Scottish Ministers, the Scottish Parliament, local authorities, NHS bodies, and educational institutions. It also included agencies under the Scottish Executive, such as the Crown Office and the Scottish Prison Service. In particular, it is worth noting the line in paragraph 33 states that 'A basic objective of the Bill is to improve scrutiny of the Scottish public sector, and consequently coverage of the Bill focusses on that sector'. Whist the Law Society of Scotland has some statutory functions, as the professional body for solicitors in Scotland, run and funded by its members, it would not generally be considered to be part of the ‘public sector’.

Our records show that since FOISA came into force in 2005, there have been occasional calls by stakeholders for the Law Society of Scotland to be covered. A summary of the information we have found relating to the Scottish Government’s engagement with such calls is provided as an Annex to this letter.

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 202400426941 - Information Released - Annex

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3 page PDF

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151.9 kB