Commissioner upholds protections for Government legal advice

There is a very strong public interest in upholding the confidentiality of advice given under legal professional privilege, and in maintaining non-disclosure under the Law Officer Convention, Scotland's Information Commissioner ruled in two decisions last week.

Rosemary Agnew, the Commissioner, made her comments in refusing two appeals by individuals seeking information about legal advice given to the Scottish Government in relation to the charging of fees to English students at Scottish universities in the event of Scottish independence.

In one case, David Caldwell requested information including any legal advice on the legality of charging tuition fees to students from the rest of the United Kingdom if Scotland were to become independent, other than the legal opinion obtained by Universities Scotland. In the other, Andrew Dundas, referring to statements by the Deputy First Minister regarding legal advice, asked for documents confirming the identity or status of the provider of the advice, when and why it was provided, and whether it was conditional.

In the first case, the ministers claimed that the information sought was subject to legal advice privilege and the public interest did not favour disclosure. In the second, they confirmed that they had sought and obtained legal advice on the subject of the request, in writing, but withheld the source of the advice under the section 30(c) exemption for prejudice to the effective conduct of public affairs, while confirming that they had received no policy advice from the EU or the British Government on the matter.

On appeal, Mr Caldwell argued that it was overwhelmingly in the public interest that the legal advice should be published for reasons of openness and transparency, and so that informed judgments could be made on an issue on which senior experts had cast serious doubts on the legality of the ministers' proposed scheme. Mr Dundas believed the date the advice was provided to be important, because it would confirm whether the Scotland's Future white paper was written with the benefit of that advice. In his view, anyone might provide advice on a matter of law but only law officers could rely on their convention.

The Commissioner acknowledged the "strong inherent public interest in maintaining legal professional privilege". While there were circumstances where disclosure might be appropriate, such as an "overwhelming" requirement for disclosure, or where there was evidence of wrongdoing, misrepresentation to the public, or "an apparently irresponsible and wilful disregard of advice", there was no public interest consideration in Mr Caldwell's case such as to outweigh maintaining the exemption. 

Similarly in Mr Dundas's case, while in some circumstances there could be a public interest in knowing when advice was sought and given, it did not follow that there was a strong public interest in knowing who provided the advice. On the other hand, there were strong public interest arguments for maintaining the exemption, and on balance, more weight should be attached to the arguments which would favour withholding the information.

Click here for the decision in Caldwell, and here for the decision in Dundas.