Legal advice on Scottish independence: date set for appeal

In a decision notice of 6 July 2012, the Scottish Information Commissioner, Rosemary Agnew, ordered the Scottish Ministers to confirm or deny whether they had taken legal advice on the status of Scotland within the European Union should Scotland choose to break away from the UK. In essence, the underlying issue is whether or not an independent Scotland would retain EU membership or whether it would need to apply afresh. The Scottish Ministers have appealed against that decision, arguing that they were entitled under the Freedom of Information (Scotland) Act 2002 to refuse to confirm or deny whether they had taken such advice. The appeal is being fast-tracked, and has been listed for 18-19 December. In the meantime, here is Panopticon’s synopsis of the issues in the decision notice.

First, it is important to note how the ‘neither confirm nor deny’ (NCND) provision under s. 18 of FOISA works. Public authorities are entitled to issue a NCND response if the underlying informationm if held, would be exempt from disclosure (due to the balance of interest in maintaining a qualified exemption) and if the public interest in neither confirming or denying whether such information is held outweighs that in confirmation or denial.

The Scottish IC agreed with the Scottish Ministers on the first limb – but not the second.

The first qualified exemption relied on was s. 29(1)(a) FOISA (formulation or development of government policy. The Commissioner took the view “that “formulation” of government policy suggests the early stages of the policy process where options are identified and considered, risks are identified, consultation takes place and recommendations and submissions are presented to the Ministers. “Development” suggests the processes involved in reviewing, improving upon or amending existing policy; it can involve piloting, monitoring, analysing, reviewing or recording the effects of existing policy” (paragraph 15). The Commissioner accepted that this exemption was engaged would be engaged with respect to the underlying legal advice (if any were held). She rejected the requester’s argument that policy (here: achieving independence for Scotland) is one thing, but advice on the legal effects of that policy (here: EU membership) was a different and separate matter.

The second qualified exemption relied on was s. 30(c), which applies “would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs”. The Commissioner said (paragraph 22): “This is a broad exemption and the Commissioner expects any public authority citing it to show what specific harm would be caused to the conduct of public affairs by release of the information, and how that harm would be expected to follow from release.”

Again, she was satisfied that the exemption would be engaged. See paragraph 26: “The Commissioner accepts the Ministers’ arguments that disclosure of any such advice at this stage could be obstructive to future dialogue and negotiations with other parties and stakeholders concerning a matter of sensitivity, importance and significance.”

The requester argued that, if such legal advice was held, one could scarcely think of information in which there was a stronger public interest in disclosure. In contrast, the Ministers advanced arguments based on the need for a safe space, the risk of a chilling effect on communications, and the risk that disclosure of such information at the time of the request would create substantially misleading impressions. The Commissioner agreed that these factors were significant and that, if such information were held, the public interest would favour the maintenance of the exemptions. She added that “… in September 2011, the independence referendum was still some years away. In her view, the urgency of the need to understand the consequences of any legal advice obtained by the Ministers would be considerably less at that time (or even now) than it would be as the referendum approached” (paragraph 44).

That, however, only got the Ministers part of the way to an NCND position. The Commissioner found that the public interest favoured confirming or denying whether the Ministers had taken legal advice on this issue. At paragraph 52, she concluded that:

“In the Commissioner’s view, the role of FOISA is important not only in enabling transparency in information held by public authorities, but also in enabling transparency in information about process. In this case, whilst the Commissioner has concluded that, if the advice existed and was held by the Ministers, they would have been entitled to issue a refusal notice under section 16(1), 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.  While it is a matter for Ministers to take the approach they consider appropriate, this would enable interested parties to form their own opinions on the way in which Ministers develop policy and take decisions.”

The appeal will be extremely interesting both for its importance and for its analysis of the mercurial concept of the public interest which lies at the heart of information rights legislation.

Robin Hopkins