Public Law

This week has seen the issue of cross-border tuition fees raise its head in the independence debate once again. Specifically, there have been calls for the Scottish Government to publish its legal advice on whether EU law would permit it to continue charging fees to students from the rest of the UK (rUK) in the event of independence.

The Scottish Government has always maintained that the current arrangements, under which rUK students must pay tuition fees to attend Scottish universities while those living in Scotland do not, would continue in the event of independence. This position was recently re-iterated in its Guide to an Independent Scotland (better known as the “White Paper” – see pages 199-200 in particular).

The controversy stems from the fact that citizens of other EU Member States get access to Scottish universities on the same terms as Scots. In the event of Scottish independence (and assuming both Scotland and rUK were EU members), rUK would be another Member State. However, the White Paper argues that Scotland could justify continuing to charge rUK students because of the “unique situation” of Scottish independence. The dispute is summarised here, here, here, here and here.

The Scottish Government has said that “the White Paper is consistent with, and informed by, legal advice [it] has received”. However, it has not expressly confirmed that it has taken its own legal advice on this particular issue, referring instead to legal advice received and published by Universities Scotland last year.

If the Scottish Government does hold any legal advice of its own then it is unwilling to disclose it, resisting calls for it to do so. A letter from the head of ‘Academics Together’ to the First Minister calling for the release of any advice it holds likely qualifies as a Freedom of Information request, meaning the Government will have to disclose both the existence and the content of any advice unless it can apply an exemption under the Freedom of Information (Scotland) Act 2002 (“FOISA”). It is likely to argue that any advice is exempt because it was provided by (or to) the Law Officers and is privileged.

Eagle-eyed readers will spot that we have been down this road before. The Scottish Government appealed to the Court of Session in 2012 after the Scottish Information Commissioner (“SIC”) ordered it to confirm whether it had legal advice on the issue of EU membership. That action was dropped when the Deputy First Minister confirmed that no advice in fact existed at that time, but Cabinet Secretary for External Affairs Fiona Hyslop disclosed last year that legal advice on the issue does now exist. No doubt FOI requests have since been submitted for that too.

Legal advice can be withheld under s.36(1) of FOISA, as long as the privilege in it remains intact. Privilege can be lost or waived, however, including if advice is publicly disclosed (e.g. the advice given to Universities Scotland lost its privileged status when they put it online) or if it is summarised or publicly relied on to justify a particular course of action. Revealing that advice exists, as Fiona Hyslop did, will not usually waive privilege. However, the Government has now gone further than that, responding when challenged on legal matters by saying that everything in the White Paper is “consistent with” the legal advice it has received.

The general rule is that a party cannot seek to rely on a part or a summary of privileged advice (known as “cherry picking”) without waiving privilege in the remainder of it. The rule exists because arguments made by reference to privileged material can only be properly tested if the whole of the material is disclosed. By publicly relying on legal advice as authority for the positions set out in the White Paper, the Government may therefore have waived the privilege in any advice it holds on the issues the White Paper covers.

However, the Scottish Government has an advantage under FOISA that other public authorities do not, as section 29(1)(c) provides that information held by “the Scottish Administration” that “relates to… the provision of advice by the Law Officers” is exempt from disclosure. The “relates to” element is key, as it means the exemption should cover external advice – for example, Senior Counsel’s opinion – provided to the Lord Advocate to assist him in forming his own advice to the Scottish Ministers (though it would not cover advice they obtained other than via the Law Officers). Perhaps crucially, the exemption does not require that the relevant information still have privileged status.

However, both sections 29(1)(c) and 36(1) are (unlike the ordinary rules on privilege) subject to a public interest test. They can therefore only be relied on if the public interest in maintaining the exemption outweighs the public interest in disclosing the information. The SIC published a decision in December relating to a request for information (including legal advice) on various issues relating to independence and the EU. The SIC decided that the information could be withheld, though the decision makes clear that the reasoning was specific to the circumstances and timing of that case – i.e. a request made in April 2012 and a Scottish Government decision reached in September 2012.

The SIC confirmed late last year that the closer we get to the referendum, and particularly following the publication of the White Paper, the harder it is likely to be for public authorities to justify withholding ‘referendum information’ (she also confirmed that her office would be prioritising requests for ‘referendum information’). She may therefore take the view that the public interest in knowing the legal basis for the statements made in the White Paper is sufficiently strong to justify disclosing the relevant legal advice.

The Government’s public reliance on legal advice to support its arguments may make such a decision more likely, though I note two curious comments in the SIC’s recent decision:

  • “The Commissioner considers the fact that the Law Officers have reviewed the content of the specified publications largely addresses the public interest in ensuring that their content is legally accurate” (para 61); and
  • “the information which has been withheld is legal advice given to the Lord Advocate; the fact that it is not the view of the Lord Advocate lessens, in the Commissioner’s view, the public interest in the disclosure of the advice” (para 84).

Taking those two comments together, one could infer that the SIC is inviting the public to assume that the inclusion of a statement in the White Paper is QED proof that that statement is legally correct (the Paper presumably having been reviewed by the Law Officers), even if the Lord Advocate’s own external advice suggested the contrary. With the greatest of respect to the Law Officers, it is hard to imagine many of the Scottish Government’s critics signing on to that proposition.

Though we usually hate to end on this cliché, this is genuinely one issue on which only time, and future SIC decisions, will tell…

Government, Regulation and Competition Law
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