Publication - FOI/EIR release

Documents held concerning work on the Heat Networks Bill: EIR release

Information request and response under the Environmental Information (Scotland) Regulations 2004

Published:
3 Nov 2021
Documents held concerning work on the Heat Networks Bill: EIR release
FOI reference: FOI/202100238347
Date received: 9 Sep 2021
Date responded: 5 Oct 2021
Information requested

You asked for disclosure of documents held by the Scottish government concerning work on the Heat Networks Bill by officials during 2020.

Response

Attached is a copy of some of the information requested.

Some of the information you have requested is available from the following links:

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format.

An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested 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 exception 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 exception.

An exception under regulation 10(5)(d) of the EIRs (confidentiality of proceedings) applies to some of the information you have requested. This exception applies because disclosure of this information would harm the confidentiality of the proceedings of a public authority where such confidentiality is provided for by law. In this context, “proceedings” includes the administrative processes whereby the Scottish Ministers seek Crown consent in order to satisfy the requirements of Rule 9.11 of the Standing Orders of the Scottish Parliament. Within those proceedings, we consider that an obligation of confidence at common law exists in respect of correspondence between the Scottish Government and Her Majesty, including Her representatives, in relation to Crown consent. 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 some public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. Disclosure would also facilitate further understanding of the mechanism by which Crown 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 Crown 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.

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.

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.

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