Communication concerning mountain hares’ current and future legal status: EIR release

Information requested

1. Any electronic, written, or other correspondence from or between the Scottish Government directorates, between August 2020 and August 2021, concerning mountain hare's current and future legal status. This should include (but not be limited to) electronic, written, or other correspondence concerning mountain hares' current and future legal status relating to the seventh Quinquennial Review of Schedules 5 or 8 of the Wildlife and Countryside Act.

2. Any electronic, written, or other correspondence from or between the Scottish Government and the Joint Nature Conservation Committee (JNCC) between August 2020 and August 2021, concerning mountain hare's current and future legal status. This should include (but not be limited to) electronic, written, or other correspondence concerning mountain hares' current and future legal status relating to the seventh Quinquennial Review of Schedules 5 or 8 of the Wildlife and Countryside Act.

3. Any electronic, written, or other correspondence from or between the Scottish Government and the UK Government Department for Environment, Food and Rural Affairs (DEFRA) between August 2020 and August 2021, concerning mountain hare's current and future legal status. This should include (but not be limited to) electronic, written, or other correspondence concerning mountain hares' current and future legal status relating to the seventh Quinquennial Review of Schedules 5 or 8 of the Wildlife and Countryside Act.

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We 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.

Attached is a copy of some of the information you requested.

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)(d) (material in the course of completion, unfinished documents, or incomplete data), 10(4)(e) (internal communications), 10(5)(d) (confidentiality of proceed provided by law) and 11(2) (personal information of a third party), of the EIRs applies to the information. The reasons why those exceptions applies are explained below.

Furthermore, under regulations 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. Some of the information you have requested is already available from the following websites:

• Updates on the Quinquennial Review (QQR 7) of Schedules 5 and 8 of the Wildlife and Countryside Act
• The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 (Commencement No. 2) Regulations 2021
• NatureScot guidance on Mountain hare licensing
• Parliamentary questions
• Parliamentary petition – falconer rights

You requested “Any electronic, written, or other correspondence from or between the Scottish Government directorates, between August 2020 and August 2021, concerning mountain hare's current and future legal status”. During this period the Scottish Government received a high volume of public correspondence relating to protection of mountain hare’s, in excess of 500 pieces of correspondence to which we issued a response. For that reason, we have provided examples of two standard campaign responses, one from August 2020 and one from March 2021.

REASONS FOR NOT PROVIDING INFORMATION

An exception applies
An exception under regulation 10(4)(d) (material in the course of completion, unfinished documents, or incomplete data) and 10(4)(e) (internal communications) of the EIRs applies to some of the information because it is information and advice in relation to decision making, future publication and Ministerial briefings. 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 recognise that there is some public interest in release 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 will be disclosed in the near future, when it may undermine or constrain the Government’s view on this while it is still under discussion and development.

Furthermore, there is a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers in briefing and lines to take. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable) and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exception under regulation 10(5)(d) of the EIRs (confidentiality of proceedings provided by law) applies to some of the information requested because it is legal advice. 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. The release of the content of such legal advice is likely to be appropriate only in highly compelling cases. This has been recognised by both the Scottish
Information Commissioner and the courts - see, for example, the House of Lords case, Three Rivers District Council and others v Governor and Company of the Bank of England (2004) UKHL 48.

Furthermore, regulation 11(2) provides that where the information requested includes personal data about a person other than the applicant and disclosure would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998, the public authority shall not make that personal data available. In this instance, we consider that to reveal whether the information you have requested exists or is held by the Scottish Government would involve making personal information available about employees of the Scottish Government and individuals who have corresponded with the Scottish Government. No documents have been withheld to protect this information, but any identifying details have been removed from the documents.

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.

FOI202100244500 - Information released

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