Independence money legal advice: FOI review

Information requested

1. Has the Scottish Government taken legal advice about whether they can spend any more money on independence following the Supreme Court judgment?
2. If so, can you supply that legal advice or when it will be announced?
3. If not, why have you not sought legal advice on this matter?
4. Has the Scottish government been threatened with legal action from anyone in regards to this independence money since the Supreme Court decision

Response

1. 2. & 3.: While our aim is to provide information whenever possible, an exemption under Section 36(1) (confidentiality in legal proceedings) of FOISA applies to 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.

You may be interested in this information relating to legal advice on the topic of an independence referendum, released in June 2022:

4. No legal action has been lodged or threatened with the Scottish Government in regard to money spent on independence since the Supreme Court decision.

About FOI

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