Some More on Freedom of Information – Guest Post by Carl31

I must credit Carl31 with having sent this piece to me before I posted my article this morning. However, I have only now read it, and as it looks as things from a different perspective than mine, I thought it useful to post.

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Should Scotland become independent, they would either have to apply for EU membership as a new state, or retain membership since they are currently a territory with membership, as part of the UK. The Scottish Government (SG) was subject to a FoI request on the existence of legal advice on this question. They refused, but the Scottish Information Commissioner (SIC) ruled that the info should be made public. I wrote recently in a short piece, about the dual position of the law over the release of the existence of this legal advice (please see these pages, Guest Posts, September 24th).

I wrote because there seemed to be the onset of legal proceedings in which both sides would have ‘the Public Interest’ at the heart of their case. To either release or fail to release the info in question were both considered to be in the Public Interest. Well, there have been developments…

Please see…

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-20067575

At the foot of the story its stated that the court case has been dropped. There is a current furore due to the SG’s release of the information that the legal advice doesn’t currently exist. A lot is being made of past utterances of the First Minister that indicated the legal advice existed. This position has also been defended by other ministers, presumably in full knowledge. I will leave the political game to the politicians since, same as the last piece, I don’t want to put a particular slant in here.

If the court case has been dropped, what does this mean to the opposing/dual legal positions of the SIC and the SG? Does it mean that the openness of Freedom of Information has won the day against protecting the advice of civil servants? Can we expect similar heart lifting victories for such Freedoms like (topically) full openness and admissions from West Yorkshire Police re Hillsboro’, openness from the BBC and other organisations over who knew what about the deplorable Mr Savile and when, and a totemic escape of Julian Assange from the Ecuadorean Embassy in a hot air balloon?

(In case you’re wondering why that’s in there … Last week’s Sun, rag that it is, had some examples of what the bookies had at shorter odds than Celtic beating Barca. Workmates and I chuckled – I wouldn’t know its contents unless pointed out to me – at such stuff as ‘President Obama announcing the existence of aliens’, ‘Cameron and Miliband embarking on a Twitter spat’ or, strangely, ‘Assange exiting the Ecuadorean Embassy in a hot air balloon’. Well, IMO the Glorious Hoops might have just pulled it off if they had just maintained full concentration for all of each half, instead of not quite for the last couple of minutes of each. Don’t hold your breath waiting on the rag acknowledging these efforts.)

I think not. Since the court case has been dropped, the possibility of an imminent legal test of both the SG’s and the SIC’s arguments to see which holds sway is no more. This means that both sides can maintain the opinions and legal positions with validity. I had been looking forward to it 😦 … Oh well, I will just have to make do with the current political pantomime. 🙂

Carl31

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5 Comments

Filed under Freedom of Information, Guest Posts, Politics, Press

5 responses to “Some More on Freedom of Information – Guest Post by Carl31

  1. redetin

    Carl31,
    Thanks for this extra post on the subject of FOI, I suppose the legal minds would ask whether FOI was originally intended to be able to override the Ministerial Code and both sides might be happy that: “the possibility of an imminent legal test of both the SG’s and the SIC’s arguments to see which holds sway is no more”.

    But what is the position of “legal advice”. Discussions between lawyers and clients are normally confidential. The Commissioner has said in one decision:

    “Section 36(1) of FOISA provides that information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings is exempt information. One type of communication covered by this exemption is that to which legal advice privilege, a form of legal professional privilege, applies. Legal advice privilege covers communications between lawyers and their clients in the course of which legal advice is sought or given.”

    http://www.itspublicknowledge.info/ApplicationsandDecisions/Decisions/Decisions.php

    If the current SG operated within the Ministerial Code (the rules of the game for all SGs), it operated on the understanding that legal advice would not be made public.

  2. carl31

    Redetin,
    two points to add here…
    1. it was the existence or otherwise that was to be confirmed by the SG and released, not the content if applicable.
    2. The SG is elected to represent the people – so the legal advice might be, in some circumstances, viewed as ‘the people’s’ legal advice. If considered in this way, then of course it is right to release the legal advice. In this context I view the role of the SIC as the person/office that adjudicates on whether the legal advice should be considered in this way or not – the Public Interest from one angle weighed against the Public Interest from another.

    I don’t see the importance of the legal advice privilege in any doubt here. I do see it as most clearly not absolute. Some form of legal case to test where one might have held ascendancy over another would have been useful and intersting. Any judge having to set out, in their opinion and judgement, why under a range of circumstances one PI might have ‘won’ over another PI would have been a good read.

  3. John Burns

    Look, pouring over the ‘fine print’ of this subject is merely an exercise in semantics.

    Salmond, for his own, and his party’s good, led the press and public to believe that he had had positive legal advice that Scotland would automatically remain part of the EU, if it voted for independence.

    That was a lie, either of omission, or of, commission. and would not have been corrected by the SNP had their Court Of Session bluff not been called.

    They have now been exposed as liars who will do ANYTHING, say ANYTHING in order to break-up the UK, at ANY cost.

  4. Scots

    Oh John,like a dog with a bone.Salmond as i previously mentioned started every interview by saying ” i am not allowed to tell you what legal advise we have received,and even if we have received any” with regard to the question of EU membership. If the pygmy politicians in opposition fail to hear this(and infact omitted it in their accusations)then they are merely clutching at straws,as always. Alex Salmond may be far from perfect, but i would love to hear which upstanding politicians you are comparing him against in your many,many,many tirades. It is getting boring that you mention him in response to every article, no matter the subject.
    ps i have read Pauls articles on the subject and realise that he may have erred when one looks at the finer(untested)points on revealing information given.But, as i say,i also heard all the interviews and had no problem understanding his disclaimer proceeding everyone i heard.Oh,and here was me thinking you loved semantics too:).

  5. carl31

    Having had more time on Paul’s preceding post, having looked again at Nicola Sturgeon’s recent statement, and having happened upon this:
    http://ianssmart.blogspot.co.uk/2012/10/pants-on-fire.html?m=1
    …Its clear that things aren’t clear. I may be ‘like a dug wi a burst baw’ here, but it strikes me that there is a great deal of significance in the recent actions of the SG re its legal advice on an independent Scotland continuing in membership of the European Union.
    Any SG legal advice may have either come from Law Officers or from elsewhere. The Ministerial Code states that content of either should not be released unless permission is given prior, but only existence of Law Officers’ advice given is similarly protected.
    The original FoI request by Catherine Stiller was on whether the SG had received any legal advice. So, if legal advice has been obtained from a source that isn’t the SG Law Officers, continued use of the defence that the Ministerial Code prohibits confirmation of its existence is not true. They should tell us all that it either exists or doesn’t, in the face of the Scottish Information Commissioner’s ruling.
    Nicola Sturgeon recently made a statement that shook up the Scottish political scene – it was a very significant statement to the Scottish Parliament that said… the SG has “now commissioned specific legal advice from our law officers on the position of Scotland within the European Union if independence is achieved through this process”, and it would appear at first look that this confirms the non-existence of previous legal advice, but on closer examination it might not. It leaves quite a lot of wriggle room. Also, some extra wriggle room may be built in by the fact that Ms Sturgeon made the statement and not the FM.

    Her Statement is below in italics, with my comment and queries in bold.
    In light of the Edinburgh agreement, by which both Governments have agreed the process for Scotland to achieve independence, I can confirm that the Government has now commissioned specific legal advice from our law officers on the position of Scotland within the European Union if independence is achieved through this process.
    Which government has sought the advice? The sentence sets a scene that involves two Governments, so which one has commissioned specific legal advice? Also, this sentence doesn’t rule out the existence of legal advice from another source. Maybe there is no legal advice at all, but this sentence doesn’t say that.

    The Scottish Government has previously cited opinions from a number of eminent legal authorities, past and present, in support of its view that an independent Scotland … will continue in membership of the European Union but has not sought specific legal advice.
    Now, its clear in this sentence that the Scottish Government is referred to, but re the legal advice – was it just from the SG’s law officers, or at all? The word ‘any’ between ‘sought’ and ‘specific’ would have cleared this up. Its absence could be significant. Or maybe its not.

    However, as the Edinburgh agreement provides the exact context for the process of obtaining independence, we now have the basis on which specific legal advice can be sought.
    Again, this legal advice can be sought from SG Law Officers or elsewhere. Which is it now?, and has any been sought in the past? Its important to be open, according to the SIC, if ANY legal advice exists re an independent Scotland continuing in membership of the European Union. Maybe this sentence is set out this way to defend the Salmond statements in the Andrew Neil interview (for more detail, please see Paul McConville’s excellent preceding blog post to this one)

    The views of those other eminent authorities will continue to be highly relevant, but the Government’s position in the independence white paper will be based on and consistent with the advice that we receive.
    Now, this might not matter, but which Government is referred to here? Curious, to my inquisitive mind, is the late appearance of the word ‘Scottish’ in the full statement, followed by its disappearance here. I don’t know of any planned Westminster ‘Independence White Paper’, so I would assume its the Scottish Government.
    Also, if the SG already have some form of legal advice, but not specific and/or not from SG’s Law Officers, and the latest commissioned specific legal advice from the SG’s Law Officers concludes the opposite, wouldn’t that put the SG in a win/win? They could include either/or in thier Independence White Paper. And one last thing … where, in this sentence, has the word ‘legal’ gone, and why? Is the advice referred to here not now legal? Am I being too picky? There might be no significance to these subtle changes.

    Given that my statement answers the ruling of the Scottish Information Commissioner on the existence of legal advice, there is now no need for the Government to pursue its appeal against that ruling in this specific case, and I have asked our lawyers to advise the court accordingly and to ask that the appeal be dismissed. …
    But it doesn’t quite. What exactly is the intended use of the ‘Given that …’ at the start of this sentence?
    The words mean, ‘on condition that..’, or ‘provided that ..’ in a general sense. Why not simply use ‘Since’ instead? This, again, might mean nothing, and I’m super picky, but maybe not. It may be significant.
    An unequivocal answer to the existence of ANY legal advice would clear things up.

    I should also make it clear that, in confirming that the Government has asked for law officers’ advice, I have sought and received the prior agreement of the Lord Advocate.
    Will this add to any previously obtained advice from another source?

    This statement is therefore consistent with paragraph 2.35 of the ministerial code and the long-standing convention on which that section of the code is based, both of which will continue to be vigorously upheld by ministers.
    Why are both referred to here? Since the previous sentence tells us that its “law officers’ ” advice that has been sought, and both the EXISTENCE of such and its CONTENTS are covered by section 2.35 of the MC, why even consider having to mention “the long-standing convention on which that section of the code is based”? Maybe its just self-back-patting. Maybe not.

    The confirmation that I have given relates to the particular circumstances of the issue and does not set a precedent.
    This seems to me to be a get out clause for future use.
    = = = = = =
    In some places in the statement its unclear which Government is being referred to. One could assume that in each case its the SG, but there is just a chance its not. What would be the advantage to both Governments in muddying the legal waters? I guess it could be that both Governments could receive two sets of legal advice, and could produce whichever opinion suited them in their publications whenever the time is right. It could suit them both to collapse the scrum.
    So in conclusion…
    There remains a question over the existence of legal advice obtained from a source that isn’t the Law Officers – that hasn’t been answered and is subject to a ruling by the Scottish Information Commissioner. It is unclear in places in the Sturgeon Statement which Government is being referred to and which Government is seeking legal advice from our law officers. This could be of advantage to each. The statement uses the words ‘legal advice’, ‘specific legal advice’, or just ‘advice’ at various places. The difference may mean not much, or it may be significant, but its not clear.
    Overall, there is enough room for manoeuvre in the full statement. If anyone thinks I am unjustifiably picky on meanings of this, or absence of that, I would refer them to a single example amongst many possible, where a Government wanted to specifically use wording that included just enough ambiguity to allow future exit strategy…
    That is the Dodgy Dossier, which included the ’45 minute claim’.

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