Comment: Referendum advice retains privileged position … for now

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The Scottish Government’s legal advice on the EU status of an independent Scotland is like the Higgs boson. You now know it exists, but you still can’t see it.

Readers will recall last year’s stramash over the Scottish Government’s refusal to say, in response to a freedom of information request, whether it held legal advice on Scotland’s EU status in the event of independence.

That reticence led to the Scottish Information Commissioner ordering the Government to say whether such advice existed. The Government appealed to the Court of Session, but abandoned the appeal after Nicola Sturgeon, Deputy First Minister, told the Scottish Parliament in October that no advice had in fact been obtained, but that it was about to be sought.

Fiona Hyslop, the Scottish Government External Affairs Minister, recently disclosed 
that the Government has 
now received that legal advice. She also said that it would not be published.

The basis for that approach is the fundamental principle of legal privilege, which protects lawyer-client communi-cations in which legal advice is being sought or given. The right to withhold privileged information is available to everyone, including public bodies and governments. The courts will treat it as absolute, and will not override it, even on public interest grounds.

While a court will not order that privileged advice be disclosed, the client can choose to divulge it. Indeed, the UK Government in February published legal advice it had obtained about an independent Scotland’s status in international law. However, the ministerial code requires the consent of the law officers (the Lord Advocate and Solicitor General for Scotland) before ministers can disclose even the fact that legal advice has been provided. That cautious approach exists because privilege can be lost or waived in certain circumstances, including if the terms of advice (or any part of it) are publicly disclosed or summarised, or publicly relied upon to justify a particular course of action. Disclosing the existence of advice will not usually waive privilege (the ministerial code takes a “belt-and-braces” approach) and so nothing Fiona Hyslop said was likely to waive the privilege in the advice received.

The Scottish Government could still face difficulties in resisting disclosure of the advice. The Freedom of Information (Scotland) Act 2002 complicates the privilege issue for public authorities. Unlike in a court action, public interest considerations are relevant in deciding whether privileged information can be withheld under FOISA. The “privilege exemption” in section 36(1) of FOISA can therefore only be used if the public interest in withholding the information outweighs the public interest in disclosure.

If fresh FOISA requests are made for the Scottish Government’s legal advice they are likely to boil down to the decision of the commissioner (and the courts, if her decision is appealed against) on these competing public interest considerations. The privilege exemption cannot be used to justify refusing to say whether information is held, so last time the commissioner considered the issue the Scottish Government instead argued that if any legal advice existed, it would relate to the formulation or development of Government policy and disclosing it would prejudice substantially the effective conduct of public affairs. The commissioner agreed that both exemptions would be available if 
the advice existed, and that the public interest would lean in favour of withholding it.

Those conclusions were quite time sensitive, however, with the commissioner noting that the need to understand the consequences of any legal advice would increase as the referendum approached.

A different decision may therefore be reached next time around.

Only time will tell what approach the commissioner, and perhaps ultimately the courts, might take if asked to assess a fresh FOISA request for the advice the Scottish Government now admits it holds.

However, given the typical length of the full FOISA 
process, including appeals, 
time may already be quite tight for any new requests to be fully resolved before next September’s referendum.

• Charles Livingstone is an associate, and Gemma McKinlay a solicitor, in Brodies public law & regulatory team.