Briefings referencing a Section 30 order: FOI release

Information requested

Copies of all briefings prepared by civil servants which include reference to a Section 30 order.

On 5 January 2021, you clarified that your request was information referencing a Section 30 order in the context of an independence referendum.

Response

Some of the information you have requested is enclosed in Annex A. While our aim is to provide information whenever possible, exemptions under Sections 29(1)(a) Formulation of Government Policy and 30(b)(i) Free and Frank Provision of Advice of FOISA applies to some of the information requested. The reasons why these exemptions apply are explained in Annex B.

Annex A
The following information is an extract from 2 briefings provided to Scottish Government Ministers in January and February 2020. It is provided as an extract because the briefings contain other information outside the scope of your request. Please note, the draft legislation referred to is the Referendums (Scotland) Act 2020.

• The Scottish Government has prepared draft legislation to set out clearly, to the UK Government and to the people of Scotland, how we think an independence referendum would best be legislated for.
• The Scottish Government calls on the UK Government to begin discussions about respecting the people of Scotland’s right to choose and to agree legislation that would put beyond doubt the Scottish Parliament’s ability to give Scotland that choice.
• Whether that legislation is in the form of a Section 30 Order, or a Bill in the UK Parliament, and the conditions that may be attached to it (for example, as to timing) would be a matter for discussion between governments, and agreement by parliaments. 

Annex B
REASONS FOR NOT PROVIDING INFORMATION

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 of the Scottish Government’s policy on question testing and the timetable for a future independence referendum.

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 question testing and the timetable of an independence 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.

Section 30(b)(i) – free and frank provision of advice
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of 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 question testing and the timetable for a future independence referendum will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken, and these discussions relate to a sensitive or controversial issue such as Scotland’s constitutional 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 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 policy position on question testing and timetable for an independence referendum, 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 between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

About FOI

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