Impact of leaving EU and any contingency plans for no-deal Brexit: FOI release

‘I would like to request, under the terms of the FOISA, details (from 1 January 2016 to the present) of the following:

•             any assessment your organisation has made (or has commissioned others to make) of the impact the UK leaving the European Union is likely to have in your areas of responsibility

•             any preparations your organisation is making or contingency plans you have prepared for the UK leaving the European Union in all possible scenarios including a ‘no deal’ Brexit’

Response

In response to your request I enclose a copy of some of the information you requested in a PDF format as outlined below.

1.     Annex A - Brexit Note- Revised Draft - March 2018 (Still in Draft)
2.     Annex B – Extracts from Briefing
3.     Annex C - Transport and Single Market - Background Info
4.     Annex D - REC Committee - Transport Submission
5.     Annex E - Letter Haulage Permits and Trailer Registration Bill
6.     Annex F - Road Safety and Accessibility
7.     Annex G - Fact sheet  Aviation agreements
8.     Annex H - Fact sheet - European Aviation Safety Agency
9.     Annex I - Fact sheet - logistics - transporting seafood to Europe
10.  Annex J - Fact sheet - Preparing for Brexit Through Workforce Planning
11.  Annex K - Factsheet - Aviation - Swiss Aviation Agreements
12.  Annex L - Factsheet - Road Haulage - Swiss Overland Transport Agreement

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 exemptions under sections 28(1) (Relations within the United Kingdom),  Section 29(1)(a)  (formulation or development of government policy), Sections 30(b)(i) and 30(b)(ii) (free and frank advice and exchange of views) 36(1) (Legal advice) and 38(1)(b) (personal data) of FOISA applies to that information.  The reasons why the exemptions applies are explained below.

Our aim is to provide information whenever possible.  However, in this instance, some of the information you have requested is not held by the Scottish Government for the purposes of FOISA because we received it in confidence from the UK Government. This means that, under the terms of section 3(2)(a)(ii) of FOISA,  we are unable to disclose it in response to your request. However, you may wish to submit a new request under the Freedom of Information Act 2000 (FOIA) to the Department for Transport at FOI Requests, Department for Transport, FOI Advice Team, D/04, Ashdown House, Sedlescombe Road North, St Leonards on Sea, TN37 7GA who should be able to help you further.

Reasons for not providing information

An exemption applies.

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party. Disclosing it wouldcontravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.  This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

An exemption applies, subject to the public interest test.

Section 28(1) – relations within the UK.

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested.  This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government. It would reveal candid discussions between the UK Government and Scottish Government  on the impact of EU Exit on Scottish Transport and discussions on influencing negotiating positions. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. Disclosure of this information will mean that the UK Government is likely to be more reluctant to communicate as frequently and openly with the Scottish Government in future.

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 maintaining close working relationships between the Scottish Government and the UK Government and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest such as the formulation and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum and their potential impact on Scottish Transport. There is no public interest in disclosing information when that will damage relationships and disrupt future communications as that may impact on the effectiveness of future policy development and implementation work.

Section 29(1)(a) – formulation or development of government policy.

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 formulation and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum relating to Scottish Transport issues.

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 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  protecting Scotland’s interests in Europe following the EU Referendum 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.

Sections 30(b)(i) and 30(b)(ii).

An exemption under section 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) ) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views and provision of advice. This exemption recognises the need for officials to have a private space within which to discuss options freely and provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice and free and frank exchange of views will substantially inhibit the provision of such advice and the candor of discussions in the future, particularly because these discussions are still ongoing and these discussions relate to the sensitive issue of relates to the formulation and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum and their potential impact on Scottish Transport.

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 and free and frank exchange of views to Ministers, as part of the process of exploring and refining the Government’s position and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum  relating to Scottish Transport issues, until the Government as a whole can adopt a policy 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 policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues and free and frank exchange of views between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Section 36(1) – legal advice.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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 some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to  confidentiality of communications between legal advisers and clients, to ensure that Ministers  and officials are able to receive legal advice in confidence, like any other public or private organisation.  

Formulation and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum.