Publication - FOI/EIR release

Covert Human Intelligence Sources (Criminal Conduct) Act 2021 correspondence: FOI release

Published: 24 Mar 2021

Information request and response under the Freedom of Information (Scotland) Act 2002

Published:
24 Mar 2021
Covert Human Intelligence Sources (Criminal Conduct) Act 2021 correspondence: FOI release
FOI reference: FOI/202000111668
Date received: 13 Nov 2020
Date responded: 24 Dec 2020
Information requested

Correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone calls, minutes of meetings, briefings or otherwise) between the UK Government and the Scottish Government regarding the Covert Human Intelligence Sources Bill. Please limit between 1 April 2020 and the present date.

Response

Attached is a copy of some of the information requested.

An exemption under section 25(1) of FOISA applies to some of the information you have requested. This exemption applies because some of the information you requested relates to the Draft Revised Code of Practice of Covert Human Intelligence Sources. This document is publicly available at the following website: www.gov.uk/government/publications/covert-human-intelligence-sources-draft-code-of-practice

Also, some of the information you requested refers to the  Explanatory Notes to the Bill. The are publicly available at the following website: https://bills.parliament.uk/bills/2783/publications

An exemption under section 28 of FOISA applies to some of the information you have requested. This exemption applies because disclosure of some of the information requested would, or would be likely to, prejudice substantially relations between the Scottish and UK Governments whilst the Bill is still progressing though the UK Parliament and discussions are on-going. It is important the both Governments are able to continue to engage constructively on this matter and the release of some of the information requested could erode trust and confidence between Administrations on what is a sensitive and highly contentious matter.

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 for transparency and greater understanding. However, this is outweighed by the public interest in the harm that would be caused to the relationships between administrations in the UK by release.

An exemption under section 29(1)(a) of FOISA applies to some of the information you have requested. Section 29(1)(a) exempts information if it relates to the formulation or development of government policy. In this case some of the information requested relates to identification of associated risks and options relating to the formulation of policy and to the recommendations and submissions presented to Ministers for their consideration.

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 for transparency and greater understanding. However, this is outweighed by the public interest in ensuring that Ministers have confidence in the policy development and formulation process which could be compromised by release.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on this policy. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter.

Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

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Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG