Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018, related material: FOI review

FOI reference: FOI/18/02860 Review  
Date received: 8 October 2018 
Date responded: 25 October 2018

 

 

Under FOISA, please provide the correspondence and briefing materials that relate to The Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018 and its accompanying documents, including correspondence or briefing materials relating to drafts or earlier versions of the Order and its accompanying documents, shared between:

 

Please provide information up to two months ahead of the Order being made, i.e. from 23 March 2018, and up to one month after being laid, i.e. 30 June 2018.

 

As noted in my letter of 8 October 2018, the above was submitted to the Scottish Government as four separate FOISA requests (corresponding to the four bullet points). However, due to the similarity of the information sought and the identical request dates, it has been combined into a single request for administrative purposes. They will also be treated as a single request throughout this letter.
 

 

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.

 

You submitted your request to the Scottish Government on 27 August 2018. Unfortunately, the Freedom of Information Unit did not action the request until it was brought to their attention by your requests for a review of the failure to respond on 27 September 2018. It was then allocated to the policy lead for the material your request related to, and subsequently to me to action as a review response.

 

I understand that the Freedom of Information Unit staff have been in direct contact with you to apologise for the delay. I would also like to apologise again on behalf of the Scottish Government.

 

 

I can now provide our response to your original request, and I enclose a copy of some of the information you requested in the following annexes.

 

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 a number of exemptions under sections of FOISA apply to that information. The specific exemptions, and the reasons why they have been applied, are detailed below.

 

 

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party (in this case, names and contact details of Scottish Government staff below the grade of Deputy Director), and disclosing it would contravene 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 under section 25(1) of FOISA (information otherwise accessible) applies to some of the information you have requested. Some of the information you have requested is in the public domain and is already reasonably obtainable. There is therefore no requirement for the Scottish Government to provide it to you through FOISA. 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.

 

The following information is captured by your FOISA request, but is already publically available:

 

The Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018 (available at: http://www.legislation.gov.uk/uksi/2018/626/pdfs/uksi_20180626_en.pdf

 

The Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018 Policy Note (available at: http://www.parliament.scot/S5_Social_Security/Meeting%20Papers/PublicPapers_20180621.pdf

 

The Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018 Explanatory Memorandum (available at: http://www.legislation.gov.uk/uksi/2018/626/pdfs/uksiem_20180626_en.pdf and
Letter from Minister for Social Security to Convener of Social Security Committee, dated 30 May 2018 (available at: http://www.parliament.scot/S5_Social_Security/General%20Documents/20180530_MinisterSSecuritytoConvener_section93order.pdf

 

If, however, you do not have internet access to obtain this information from the websites listed, then please contact me again and I will arrange for paper copies to be sent to you.
 

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 on the Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018.

 

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 these discussions (including advice to the then-Minister for Social Security and draft versions of letters for her signature) 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 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 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. The release of documents that contain information shared in confidence between officials in the Scottish Government and other Departments will mean that the UK Government is likely to be more reluctant to share such information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations.

 

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 good relations 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 that given in confidence between officials to facilitate the delivery of the Scottish social security programme (including the safe and secure transition of benefits within this Parliamentary session). There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

 

An exemption under section 30(a) of FOISA (convention of collective responsibility of Scottish Ministers) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially the convention of the collective responsibility of Scottish Ministers for the Scottish Government’s decisions on the Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018. Government in Scotland, as in the rest of the UK, has long worked under the convention that Ministers are collectively responsible for decisions and their delivery. Collective responsibility requires collective discretion, and ensures that Ministers can express their views frankly in internal discussion of an issue while maintaining a united front once decisions have been reached. Disclosing communications between individual Ministers would prejudice substantially the maintenance of the convention.

 

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 collective responsibility for the Scottish Government’s decisions on the Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018, once a collective decision has been made. Disclosure of these internal discussions between Ministers would be likely to have the effect of undermining the Government’s position on such social security legislation required for the safe and secure transfer of benefits, and thus the effectiveness of the decisions, which would not be in the public interest.

 

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses