Analysis on devolving responsibility for Air Departure Tax to the Highlands and Islands: FOI release

FOI reference: FOI/17/02426
Date received: 18 October 2017
Date responded: 16 November 2017

Information requested

Any analysis conducted by the Scottish Government prior to October 5 2017 on devolving responsibility for Air Departure Tax to the Highlands and islands.

Response

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because of exemptions under sections 29(1)(a) (formulation or development of government policy) and 30(b)(i).

The Cabinet Secretary for Finance and the Constitution set out the Scottish Government’s position with regards to the devolution of responsibility for Air Departure Tax to the Highlands and Islands in his written response to a Parliamentary Question on 7 November 2017 (s5W-12183) which I have set out below: 

The Scottish Government has carefully considered the proposal to devolve the tax to local councils and does not believe this can be done in a way which is compatible with state-aid regulations and EU law.

In addition, you may find the following discussion paper helpful:

Discussion paper on impacts of air passenger duty on regional airports

Reasons for not providing information

Exemptions under section 29(1)(a) (formulation or development of government policy) and 30(b)(i) (free and frank provision of advice) of FOISA apply to the information you have requested.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on Air Departure Tax.

We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.  However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions.  This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications.  Their candour in doing so will be affected by their assessment of whether the discussions on the development of the policy on Air Departure Tax will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to the information requested.  This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.  This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view.  Disclosing the content of free and frank advice on the development of the policy on Air Departure Tax will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken.

This exemption is subject to the ‘public interest test’.  Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.  We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.  However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s position on Air Departure Tax, until the Government as a whole can adopt a decision that is sound and likely to be effective.  This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken.  Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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