Are we sitting comfortably? – then I’ll begin…
Once upon a time, a Scottish MEP asked the Scottish Government (SG), under Freedom of Information (FoI) for any legal advice it had received on the issue of an independent Scotland’s position in the European Union (EU), were they to become independent….
There had been, and there continue, exchanges in Holyrood and wider debate, over the question of whether Scotland would be automatically a member of the EU upon independence – or whether there would have to be an entirely new application, vulnerable to a veto from existing EU states. The First Minister (FM) is adamant that EU membership would transfer to Scotland automatically and with no need to newly apply, which has led to requests to produce evidence to back up his position (assumed automatic transfer of a membership – where have we encountered that before?).
This is not intended as a political piece, but a short summary is … opponents of Independence want to sow doubts in the minds of the voters with regard to the independence project: on the economy, on defence, on the EU. The FM wants to project clarity and assurance.
Ministers refused to reveal whether the information was held. The Scottish government cited Section 18 of the FoI Act in this refusal to reveal whether the information was held. The Section 18 is used when the authority considers information would be exempt from release or the authority considers its release would not be in the public interest. One of the principles behind this is that to make any legal advice available to the public under FoI, inhibits full and frank advice being given by legal advisers/civil servants.
But Scotland’s FoI Commissioner ruled otherwise – that release was in the public interest – ordering the SG to reveal whether it holds legal advice on the status of an independent Scotland within the EU.
The FoI Commissioner said: “In the commissioner’s view, the role of [the FoI Act] is important not only in ensuring transparency in information held by public authorities, but also in enabling transparency in information about process.”
She continued … that an independent Scotland’s position in the EU “could have a bearing on how people vote in the referendum”.
And that … “In this case, the commissioner considers that it is in the public interest to know the type of information that the ministers were taking into account in developing policy in relation to such a significant issue as independence.”
At this point the information simultaneously both should and shouldn’t be revealed, in the Public Interest.
After the decision, the Scottish Government decided to appeal. A spokesman for the Scottish government said, “…It is the longstanding and usual practice of the Scottish government to neither confirm or deny the existence or the content of legal advice… The approach we have taken on this issue is consistent with the UK government position in a similar case they dealt with under equivalent legislation. We therefore intend to appeal and contest the decision.”
The FoI commissioner is, thus, being taken to court over her decision that the SG should disclose the existence of the information requested – a case that commences imminently, indeed it may well have commenced.
[BBC’s Political Editor, Scotland, Brian Taylor’s blog is an enjoyable read and is due credit for some of what appears above]
This situation raises a number of points of note as well as questions.
It’s notable that there is no ruling on release of what the legal advice is, but simply on its existence or otherwise.
It seems that the ‘neither confirm or deny’ position is there because either answer has political implications for the subject/holder of information.
Without wanting to get political, there is irony in the SNP position that ‘…approach we have taken on this issue is consistent with the UK government position’, as there is irony in the Unionist parties opposing it.
Which position holds legal precedence?
FoI commissioner’s position that release of the information is in the public interest, or
the SG’s ‘legal advice may not be full and frank now’ position protecting the fullness and frankness of civil service advice, and that release of the information is thus, against the public interest.
How might this affect other FoI requests, should a precedent of the FoI commissioner above the longstanding principle protecting the fullness and frankness of civil service advice, be established?
If precedent such as this is established in Scotland, but not in the rest of the UK, how will an FoI request regarding a discussion/consultation/advice given across the border be affected (such as an FoI request re a discussion between the FM (SG) and HMRC (UK parliament))?
I understand that FoI requests have been made re the FM’s discussions with HMRC on the Rangers Saga, and if any intervention was made/attempted. There are implications of there has, as there are rules in place preventing political assistance to clubs.
There are broader issues more generally with FoI and the Scottish public Sector. The Scottish Commissioner recently publicised the increase in incidences of refusal to release information, but noted that it is not known if this is due to a higher rate of refusal within a similar number of requests, or if it is down to a higher number of requests overall (there was an interesting interview on BBC Radio Scotland a morning earlier this week). I would suggest that public servants are getting a bit more savvy re the grounds for refusal or the public are getting more intrigued by subjects that are more sensitive to the public servants or the public is getting more savvy at how FoI can be used to make public sector activities more open to the electorate (or any combination of these).
Whichever the precedence is in the case discussed, or how broader FoI issues are developing, I will be watching with interest. In the case discussed IMO the SG should bow to the wishes of Scotland’s FoI commissioner, release the information, and the civil service throughout the country, legal or otherwise, should adjust to ‘the new normal’. I would be interested in the views of the Random Thoughts blog and contributors.
Posted by David McCloy