Thursday, 12 July 2012

A mini blog on freedom of information

Today, Rosemary Agnew, the new Information Commissioner, has decided to order the Scottish Government must disclose whether it has obtained legal advice on an Independent Scotland's right to remain part of the European Union.

In doing so, she has also ruled that, if it has, it need not disclose its content.

On that second point she has my unconditional support. Governments of any rank must be entitled to the confidentiality of their legal advice as much as any private individual.

We have an adversarial legal system. Every lawyer knows the strength and weaknesses of their own case. It would be absurd if they had to disclose the weaknesses to the other side just because their client was the government. Whether that ought to be our system is a topic for another day altogether.

The first point, whether they must disclose if  legal advice exists at all,  is more difficult and indeed one on which the Scottish Government intends to appeal to the Court of Session. Now, at this point I could, myself, provide an "on the one hand, but on the other" opinion.

But if I was advising the Government as a lawyer, I'd ask what would be gained by winning such an appeal. If the Government possesses opinion that Scottish EU membership is unproblematical they would surely have published it. If their opinion says otherwise then understandably they'd like to keep that to themselves. But only in the second scenario would they object to people knowing whether it exists at all. Even if the Court of Session supports them in that objective.

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