Scottish Information Commissioner decision on independence referendum legal advice: response

On 26 April 2022 the Scottish Information Commissioner issued a decision notice (048/2022) requiring the disclosure of certain information about legal advice on the topic of a second independence referendum. 

The information had been withheld by the Scottish Government in response to a Freedom of Information request as it considered that the Government should have been able to receive the advice in confidence under “legal professional privilege”. 

The Commissioner, in responding to an appeal from the requester, took a different view - that considerations favouring release in this case outweighed those for maintaining legal professional privilege.  

The Scottish Government has considered the Commissioner’s decision carefully. 

There is a longstanding convention, observed by Scottish, UK and other governments, that government does not disclose legal advice except in exceptional circumstances.  This convention, which is reflected in the Scottish Ministerial Code, is intended to ensure that full and frank legal advice can be taken by governments, just as other organisations and individuals can take legal advice in confidence and subject to legal professional privilege.

The convention is also reflected in the Freedom of Information (Scotland) Act 2002, section 36 of which makes such information exempt from release to the extent that the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.  It is on the applicability of this section of the FOI legislation that the Commissioner has come to a different view from the Scottish Government.

The Scottish Government considers that the convention on legal advice is important for ensuring good government. It disagrees strongly with the Commissioner’s reasoning in his decision and considers that there are good grounds for a successful appeal to the Court of Session to challenge the Commissioner’s ruling.   

However, we have also taken account of the fact that the material covered by this Decision  dates from 2020 and relates to proposed government actions that have since been taken forward and on which the legal position can therefore already be assumed. The Government has therefore concluded, on the particular circumstances of this case only, that the time and expense required for an appeal would not be merited, and that it will release and publish the information concerned.

It should be stressed, however, that the Scottish Government’s publication of the material in this case does not set any precedent for its position on releasing any other information that is subject to legal professional privilege, including in response to any other Freedom of Information request.  Nor does the Information Commissioner Decision represent a binding legal precedent.  The Government will therefore continue to apply the relevant exemptions, in line with the public interest test, as set out in the Freedom of Information (Scotland) Act 2002 and to follow the Scottish Ministerial Code in relation to legal advice, including in relation to material related to a referendum.  The Government also reserves the right to appeal future Information Commissioner decisions to the Court of Session if it considers that appropriate in the circumstances.

Related information

• Legal advice to Ministers or provided by the Civil Service on the topic of a second independence referendum in 2020: FoI Appeal