Publication - FOI/EIR release

Correspondence relating to Heat Networks (Scotland) bill: FOI release

Published: 25 May 2021

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

Published:
25 May 2021
Correspondence relating to Heat Networks (Scotland) bill: FOI release
FOI reference: FOI/202100181726
Date received: 21 Mar 2021
Date responded: 27 Apr 2021
Information requested

Copies of the correspondence received, the response sent (including any further follow up correspondence) and any discussions surrounding this (including internal discussions) between the Scottish Government and representatives of the Crown regarding Queen's Consent and the Heat
Networks Bill.

Please also include copies of minutes of meetings held relating to the obtaining of Queen's consent to Acts of the Scottish Parliament, in line with Rule 9.11 of the Standing Orders in relation to the same Bill.

Response

Attached is some of the information requested. 

While our aim is to provide information whenever possible, in this instance we are unable to provide most of the information you have requested because exemptions under sections section 30(b) (Prejudice to effective conduct of public affairs , 36(1) (confidentiality), 38(1)(b) (personal information) and 41(a) (Communications with Her Majesty etc. and honours) of FOISA applies to that information. The reasons why those exemptions apply are explained in the Annex.

Regarding minutes of meetings held relating to obtaining Crown Consent for the Heat Networks (Scotland) Bill, the Scottish Government does not have some of the information you requested because no such meetings took place.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

ANNEX
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, i.e. the names/contact details 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.

An exemption applies, subject to the public interest test
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.

An exemption under section 30(b) (Prejudice to effective conduct of public affairs) to some of the information requested because it relates to deliberations between Scottish Government officials and the Scottish Ministers.

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. This is because it is necessary for officials and Ministers to have the opportunity to provide each other with free and frank exchange of views in exercising their functions.

An exemption under section 25 (1) (otherwise accessible) to some of the information requested because it is publicly available. This relates to some of the attachments to one of the emails included in the document. Links have been provided to all documents included under this 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. This is the case for these documents as they are readily available to the general public.

An exemption under section 41(a) (Communications with Her Majesty etc. and honours) applies to some of the information requested because it is communications between the Scottish Government and the Solicitor to the Queen in Scotland, and therefore constitutes communications with Her Majesty.

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. The background here is that the Scotland Act requires that the Parliament has a process in place to ensure that where a Bill requires Crown consent then it does not pass unless Crown consent has been signified to the Parliament. This process is reflected in the Standing Orders of the Parliament. The question of Crown consent is therefore one which the Scottish Government must consider prior to a Bill being introduced and during the passage of a Bill.

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 in order to inform public debate. Disclosure would also facilitate further understanding of the mechanism by which Queen’s consent is obtained in relation to Scottish Parliament Bills. However, we consider that this is outweighed by the public interest in maintaining good relations between the Scottish Government and the Royal Household, in protecting the free exchange of information, and in protecting a channel of communication between the Scottish Government and the Royal Household. It is important that there is the ability to have full and frank discussions on behalf of the Head of State and the Scottish Government about the issues that relate to Crown consent including how the legislation applies to the Crown to enable this constitutional process to work in an effective way.

Disclosing the content of such communications is likely to mean that future communications will be less open and less frequent, with less exchange of information, which would negatively affect the process of obtaining Queen’s consent in future.

There can be no public interest in the disclosure of information which will damage that relationship and disrupt future communications. Additionally, there is a strong public interest in maintaining the longstanding constitutional Convention that correspondence between the Sovereign and her Government is confidential in nature. This Convention is an adjunct of the right of the Sovereign to be consulted by her Government, and to advise, encourage and to warn as the circumstances require. If the content of these consultations became known, it might serve to undermine the appearance of the political neutrality of the Sovereign, and so the rights of the Sovereign could not be exercised effectively without this expectation of confidentiality.

The public interest is also served by the information that is provided to the Parliament about the matters in the Bill that require Crown consent and publicly available information about how legislation applies to the Crown which can be debated and scrutinised by Parliament.

About FOI
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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