Fisheries protection around the island of Rockall: EIR review

Information requested

With apologies for the slight delay, further to my letter of 8th March 2021, I have now completed my review of our response to your request for:

1. All letters, emails and documents exchanged between the Scottish and Irish government relating to fishing rights for EU trawlers around the island of Rockall, dating from 1 January 2019 to the date of this request. 

2. All briefing documents prepared in advance of meetings or telephone conversations between Scottish and Irish ministers, and minutes taken during any meetings or telephone conversations
between Scottish and Irish ministers, which related to or included discussion of EU fishing rights around the island of Rockall dating from 1 January 2019 to the date of this request.

3. Rockall report:
a. A copy of that report.
b. All internal Scottish government briefing papers prepared pursuant to that process and all documents, including memos and emails, exchanged as part of that process between the Irish and
Scottish governments.

4. Copies of all documented interactions, including but not exclusively emails, letters and memos, between the Scottish and UK governments regarding the use or availability of Royal Navy vessels on fishery patrols in Scottish waters, sent or received by the Scottish government from 1 January 2020 to the date of this request.

5. The names and job titles of participants, the dates, times and minutes of all telephone or video conferencing meetings between Scottish and UK ministers regarding the use or availability of Royal Navy vessels on fishery patrols in Scottish waters, which took place from 1 January 2020 to the date of this request.

have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response.

I have concluded that a different decision should be substituted.

Response

In conducting my review I have given consideration to the information regime under which we provided your initial response and the points you have raised in your review request in this regard. I have concluded that as the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we were required to deal with your request under those Regulations.

Upon review, are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

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, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

As such I have considered your request afresh under the EIRs and have set out my conclusions below:
Review of information requested

1-3b. In conducting my review, I have identified a small number of additional documents which fall within the scope of your request and should be released, in part subject to the exceptions noted below, please find these attached.

In line with the review process, I have also reconsidered the information previously withheld in points 1– 3b above.

My assessment has concluded that 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 exceptions under 10 4(e) internal communications, 10(5)(a) - International relations and 11 (1) Personal Data of the Environmental Information (Scotland) Regulations 2004. The reasons for redacting information under these exceptions is set out in Annex A of this letter. In addition, some information has been redacted as ‘out of scope’ as it does not relate to fishing around the island of Rockall.

4. In conducting my review, I have identified a single document which falls within the scope of your request and should be released in part, please find attached.

The following paragraphs provide some addition context which you may find useful. Policing and fisheries protection are fully devolved and this has not changed as a result of EU Exit. Even where
matters such as maritime security and safety are reserved, it is important that the Scottish Government is involved in discussions so we can understand the potential risks and responses in the Scottish zone. Marine Scotland is responsible for fisheries protection out to 200 nautical miles, while the Chief Constable/Police Scotland lead on policing.

Fisheries Protection is fully devolved and delivered by Marine Scotland Compliance. Whilst the RN in theory has powers to act in Scottish waters, in practice they deliver fisheries protection only in English waters and that has been the case for many years. In criminal matters it is in most cases for either Police Scotland (within 12 miles) or the Flag State of the vessel committing the offence. The Royal Navy do not have constabulary powers in Scottish waters and so could only act to support Police Scotland.

5. In relation to point 5, in conducting my review I have ascertained that the use or availability of Royal Navy vessels on fishery patrols in Scottish waters was briefly discussed by Scottish and UK ministers at the meeting below.

I have also identified a small amount of additional information which falls within scope of your request but which we are unable to provide because an exception under regulation 10 5 (f) Third party interests of Environmental Information Regulations 2004 Act applies to that information. The reason this exception applies is set on in the Annex.

Date and time	Minister	Marine Scotland supporting official
Thursday 3 December 15:00– 16:00	Humza Yousaf MSP, Scottish Government Cabinet Secretary for Justice   Robert Courts MP, UK Government Parliamentary Under Secretary of State at the Department for Transport	Lisa Mcguinnes – Head of Compliance, Marine Scotland About FOI

 

Annex A
REASONS FOR NOT PROVIDING INFORMATION

Regulation 10(5)(a) - International relations, defence, etc.
An exception applies under Regulation 10 5(a) International relations, defence etc of the EIRs applies to some of the information you have requested. Regulation 10(5)(a) allows authorities to withhold information where disclosure would, or would be likely to, prejudice substantially international relations. In this case disclosing information about fishing around the island of Rockall would substantially prejudice relations between the United Kingdom and the Government of Ireland. There is a need to maintain a platform for free and frank dialogue and assessment of evidence in order to resolve amicably such disputes.

These exchanges of information were entered in to with the Scottish Government on the understanding that it would be treated as being in confidence. If the Scottish Government does not respect this confidence, the UK Government’s relations with other states and its ability to protect and promote UK interests will be substantially prejudiced. States such as the Government of Ireland are likely to be more reluctant to enter in to discussions with Scotland or other parts of the United Kingdom in future, which would reduce both the frequency and openness of communications with the UK.

This exception 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 exception. 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 ensuring that the UK Government is able to maintain good relations with other States, in order to protect and promote UK interests. There can be no public interest in jeopardising those relations by the Scottish Government disclosing this information. There is also vital public interest in allowing Scottish Ministers and officials a private space within which to engage in full and frank discussions with their counterparts in other states. Such discussion makes for better quality and better informed policies and decisions on issues with an international dimension, and aids the protection and promotion of UK interests abroad.

Regulation 10 4 (e) Internal Communications
An exception under Regulation 10(4)(e), Internal Communications of the EIRs applies to some of the information you have requested. Regulation 104 (e) confirms a Scottish public authority may refuse to disclose internal communications. The exception recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view or course of action. This advice was often provided in response to complex and sensitive developments, disclosing the content of these communications between officials and Ministers regarding fishing around the island of Rockall will substantially inhibit such discussions in the future. These decisions relate to sensitive issues including relations with other countries.

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 Ministers and officials a private space within which to explore and refine the Government’s position. This private thinking space is essential to
enable all options to be properly considered, so that good decisions can be taken, especially given that deliberations around fishing rights around the island of Rockall are ongoing and sensitive.
Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials when seeking to understand or analyse this or other similar situations as they arise in future, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Regulation 10 4 (e) Internal Communications – legal advice
An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal legal advice and disclosure would breach legal professional privilege.

This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception. 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, 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.

Regulation 10 5 (f) Third Party Interests
An exception under regulation 10(5)(f) of the EIRs (substantial prejudice to interests of person who provided the information) applies to a small amount of the information you have requested. This
exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the interests of the UK Government who provided that information to the
Scottish Government. They:

• were not under any legal obligation to give us that information;
• did not supply it in circumstances in which it could, apart from the EIRs, be made available;
• have not consented to disclosure.

This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is a public interest in disclosing
information as part of open and transparent government. However, there is a greater public interest in protecting the interests of anyone, such as the UK Government, who provides the Scottish Government with information on a confidential basis. Disclosing such information against the express wishes of the stakeholder is likely to undermine their trust in the Government and make them reluctant in future to share information with us on issues such as the use or availability of Royal Navy vessels on fishery patrols in Scottish waters. This would significantly impair the Scottish Government’s ability to develop policies and make decisions on the basis of fully informed advice and evidence. This would not be in the public interest.

Regulation 11 (1) Personal Data
An exception under Regulation 11(1) of the EIRs applies to some of the information you have requested. This regulation applies to some of the information requested because it is personal data of
a third party, ie names of individuals 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.

About FOI
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.

FOI202100152931 - Information released

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