Scottish Government legal costs incurred: FOI release

Information requested

I am writing to ask if you can please provide me with full details of the costs incurred by the Scottish Government to date in respect of legal costs for the following:

In referring to costs I mean the costs paid out to third party solicitors and the Advocates, but also of any in house legal costs - an estimate of the costs of SGLD staff.

Please provide a break down of third party solicitors and advocates; as well as any in house legal costs.

Under freedom of information, I am seeking:

'1. The legal costs to the Scottish Government of the challenge taken at the Court of Session to the ruling of the Scottish Information Commissioner in respect of a freedom of information request made by Benjamin Harrop which had been refused by the Scottish Government on 13 May 2021.

2. The further costs of the Scottish Government's appeal to the Court of Session to oppose the release of the legal advice received by the Scottish Government relating to its decision to appeal the Commissioner's ruling which led to a further legal defeat of the Scottish Government on Monday the 9th September, 2024.

3. Further costs to the Scottish Government, which may be estimated costs, of any challenge to the decision of the FOI Commission on 9th September 2024, in the event that the Scottish Government appeal to the Inner House of the Court of Session.

4. Any further legal costs to the Scottish Government, not requested above, associated with the Scottish Government's actions relating to freedom of information requests regarding the report by James Hamilton into alleged breaches of the ministerial code by Nicola Sturgeon.

Response

1. The net cost of external legal fees for the Court of Session appeal against the Scottish Information Commissioner was £73,024. This includes £27,470 paid to the Scottish Information Commissioner in judicial expenses.

2. An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on our approach to the handling of FOI requests would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on responding to information request in compliance with FOISA. 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.

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.

Releasing information about the cost of legal advice would in turn disclose the source of legal advice which 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.

3. The Scottish Ministers are not proceeding with an appeal to the Court of Session in this matter and have disclosed the information in compliance with the Commissioner’s decision, which is published here: Legal advice given to the Scottish Government/ministers in reference to The Scottish Ministers v The Scottish Information Commissioner (case reference number XA10/23): FOI Appeal - gov.scot (www.gov.scot).

4. While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. Such costs are likely to arise from staff time and we do not time record or have a way to provide estimate of staff costs. Scottish Government staff do not, as a matter of course, record the proportion of time spent providing advice on particular matters. It is therefore not possible to provide a total cost and/or expenditure figure accrued by the Scottish Government. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

About FOI

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.