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The strange case of Jekyll, Hyde and the Scottish Government

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When the Supreme Court handed down its ruling on the Named Person scheme back in July the Scottish Government did its best to play down the judgment. Deputy First Minister John Swinney tried to claim a victory, stating that with just a few tweaks the scheme would be ready for roll-out in a matter of few weeks.

It’s now seven months later and we are none the wiser.

Perhaps the Scottish Government is more aware of the judgment’s significance than it would like to let on in the media.

Lesley Scott of Tymes Trust submitted a Freedom of Information request in August asking to see legal advice which the Scottish Government’s QC James Wolffe provided to Ministers ahead of the Named Person Supreme Court hearing. After the initial request was rejected she challenged the decision by lodging a complaint with the Scottish Information Commissioner. This too was rejected but the response is rather revealing.

Scottish Government Ministers argued that the legal advice should not be disclosed because “the litigation in question has led to significant re-evaluation of some of the content of the Named Person scheme and has raised issues that are still very much live and are currently being considered following the court case.”

“significant re-evaluation”?

Change of audience, change of tune? Surely not…?!

Here are some further extracts from the Scottish Information Commissioner’s Decision Notice. [Emphasis added]

Public interest test – the Ministers’ views

24. The Ministers acknowledged that there is likely to be some public interest in the contribution that release of this information would make as part of open and transparent government and to inform public debate as to the reasonableness and appropriateness of the Scottish Government’s Named Person scheme. They acknowledged that it has been a contentious issue.

25. However, the Ministers did not consider that these public interest arguments were sufficiently compelling to outweigh the public interest in maintaining the right to litigation privilege and legal advice privilege. The Ministers argued that it was in the public interest that they should be able to communicate with their legal advisers, fully and frankly, in confidence when preparing for and during court cases in order to be able to develop arguments, reach fully informed legal views, finalise their position in relation to legal points and generally defend their position robustly in an adversarial legal environment.

26. The Ministers noted that the litigation in question has led to significant re-evaluation of some of the content of the Named Person scheme and has raised issues that are still very much live and are currently being considered following the court case. They believed that it is clearly in the public interest that the Scottish Government, like any individual or organisation, can receive the most comprehensive and robust legal advice when preparing for and conducting litigation and dealing with the consequences of that litigation. The Ministers contended that it is in the public interest for that advice to remain confidential as its disclosure would have the effect of substantially prejudicing the Scottish Government’s ability to defend itself when subject to legal challenge by unfairly exposing internal legal exchanges to challenge.

The Commissioner’s conclusions are also worth noting.

38. In this case, the legal advice under consideration relates to legislation which affects every child (and parent) living in Scotland. Given this, it is clear that a large number of people would potentially be affected by the legal advice and the Commissioner is satisfied that this factor weighs in favour of disclosure in the public interest.

39. The Commissioner agrees with Mrs Scott that there is a strong public interest in the disclosure of information that would demonstrate the legal basis for the Scottish Government’s decision to defend a court case which incurred costs of some £500,000 of public funds. Furthermore, the Commissioner also agrees that there is a public interest in understanding why the Scottish Government contended that the 2014 Act was fully compliant with human rights legislation, when the Supreme Court took an opposing view.

40. The Commissioner has considered carefully the public interest arguments put forward by both parties. She accepts that there is a public interest in authorities being open to scrutiny and being accountable for their actions. The 2014 Act has been controversial and subject to significant public debate, and she considers that disclosing the advice would enable the general public to better understand the Scottish Government’s reasons and grounds for defending the court case. She accepts that disclosure of the legal advice obtained by the Scottish Government would contribute to transparency and accountability in understanding why the Scottish Government pursued its defence of a case which cost it (and the Scottish taxpayer) significant sums of money (while noting that the appeal was only partially successful, and that the Scottish Government successfully defended the appeal on other points).

42. The Commissioner is aware that the Scottish Government is currently establishing how to amend the 2014 Act to comply with the Supreme Court’s ruling and that the legal advice that has been requested relates to a live issue. This suggests that the legal advice should be withheld.