Timeframe required for an independent Scotland to re-join the EU: FOI review

Information requested

Your request, reference 202100227221
In relation to a previous request made (202100203619), you requested (a) “any reference to how you have concluded that the Public Interest test or indeed the section 29(1)(a) exemption should be applied. Could you firstly therefore please forward me any documentation you have which details this” and you requested (b) “any analysis that the Scottish Government have carried out, since 2016, which assesses the timeframe which would be required for an Independent Scotland to re-join the EU”.

Your review request, reference 202100234945
1. “I have also noted that you have claimed that, “Ministers and officials need to be able to consider all available options and to debate those rigorously, to understand fully their possible implications. Officials’ candour in doing so will be affected by their assessment of whether the discussions on Scotland’s eligibility for and timeframe related to future EU membership 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,” and that “Disclosing the content of free and frank discussions on Scotland’s future membership of the EU will substantially inhibit such discussions now and in the future, particularly because these they are still ongoing and decisions have not been taken, and relate to sensitive issues.”

Perhaps you could clarify how, if this assessment was to deem that we would be unlikely to meet the criteria for say, several decades due to your policy on currency, if at all, you could still assert that EU membership is in Scotland’s best interests. I fail to see how you can determine one, and be happy to produce numerous documents stating as such, without the other. At no point in any documentation in relation to the EU have you ever stated that your position is based on any potential timeframe.”

2. “I also have numerous issues with the information that you have redacted from your response, as it doesn’t seem to relate to your assessment for the formulation of this policy at all. There are numerous sections that are basic explanations of EU processes that have been removed, such as below”

“The acquis communautaire, often shortened to aquis, consists of the EU’s treaties and laws, declarations and resolutions, international agreements on EU affairs and the judgments given by the Court of Justice. The EU acquis currently consists of 35 chapters, although the number of chapters changes with each membership negotiation. Also known as the Copenhagen Criteria, these chapters have to be successfully opened, negotiated and closed. [REDACTED] [REDACTED] Prior to the 2014 referendum a scoping exercise was conducted to identify what administrative structures would be required in order for an independent Scotland to implement the EU acquis. This involved an assessment of the obligations that would accrue from EU membership in respect of areas that are currently reserved (such as regulation of Financial Services) and also devolved areas where there are shared obligations and structures (such as Transport). [REDACTED] [REDACTED]"

Could you clarify on what basis you have decided that this information should not be released.

Response

I 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 the original decision should be confirmed with modifications.

In conducting my review, I have given further consideration to the information withheld. I have reconsidered the appropriateness of the exemptions applied and where applicable the public interest test.

I have determined that whilst exemptions under section 29(1)(a) (policy development) and section 30(b)(i) and (ii) (free and frank advice and exchange of views) continue to apply for the reasons set out in our initial response, these exemptions did not apply to all of the information previously withheld. I have therefore determined that some of the information previously withheld can now be disclosed. I have provided this information in the attachment.

I have also identified one further document, containing a single paragraph which falls within the scope of your request. However, having reviewed this additional information, I am satisfied that an exemption under section 30(b)(i) (free and frank advice) would apply to this information for the reasons set out in our initial response.

In addition, I have given further consideration to the documents provided in Annex B1 and B2 of our initial response. Whilst our initial response provided a copy of these documents as they were provided to you in your previous request, given that your most recent request, the request which is subject to this review, asks specifically for analysis which assesses the timeframe which would be required for an Independent Scotland to re-join the EU, I have determined that the information held within these documents would only fall within scope in so far as it relates to the timeframe. I have therefore concluded that some of the information previously redacted from these documents would not fall within the scope of this request. I attach revised versions of both documents which reflect my assessment of the information in scope. I have identified a small amount of information previously withheld that can now be disclosed (highlighted in yellow).

Finally, I have determined that a small amount of information has been withheld because it is the personal data of Scottish Government officials below Senior Civil Service level. An exemption under section 38(1)(b) of FOISA (personal information) applies to this information because it is personal data of a third party, 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. I apologise that this was not set out in our initial response.

Further comments in relation to your specific points
In response to point 1, whilst not directly relating to the review of your original request, it may be useful to note, in her statement to Parliament on 7 September 2021, the First Minister reaffirmed the Government’s mandate to allow people to decide the country’s future. The First Minister went on to say that the Government, “will ensure that the choice - when it does come - is a fully informed one.” Therefore, it is important, as stated in the original response, that Ministers and officials need to be able to consider all available options and to debate those rigorously, to understand fully their possible implications. Officials’ candour in doing so will be affected by their assessment of whether the discussions on Scotland’s eligibility for and timeframe related to future EU membership 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.

In relation to point 2, after conducting my review I am satisfied that the information exempt from release meets the public interest test for the exemptions set out previously and is not as you suggest factual information setting out EU processes. Indeed, the specific example you reference above redacted policy advice from officials providing a running commentary alongside the respective EU process for Ministers to consider.

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.

FOI202100234945 - Annex

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