Information pertaining to Aquaculture and Fisheries (Scotland) Act 2013: EIR review

Information requested

Your request, reference 202100226158
1) Correspondence sent and received, between the Scottish Government and representatives of HM the Queen, including the Queen's legal representatives and the Crown regarding the Aquaculture and Fisheries (Scotland) Act 2013, including but not exclusively on whether any of its clauses required amendment regarding Queen's consent in line with rule 9.11 of standing orders for the Scottish Parliament.

a) Minutes of meetings regarding obtaining Queen's consent to that bill, as above.
b) Internal emails involving Scottish Government officials and ministers regarding seeking and obtaining Queen's consent to that bill and/or internal memos written by or for Scottish Government officials and ministers, as above.

2) Correspondence, sent and received, between the Scottish Government and representatives of HM the Queen, including the Queen's legal representatives, and the Crown regarding the Regulatory Reform (Scotland) Act 2014, including but not exclusively on whether any of its clauses required amendment regarding Queen's consent in line with rule 9.11 of standing orders for the Scottish Parliament.

a) Minutes of meetings regarding obtaining Queen's consent to that bill, as above.
b) Internal emails involving Scottish Government officials and ministers regarding seeking and obtaining Queen's consent to that bill and/or internal memos written by or for Scottish Government officials and ministers, as above.

Your review request, reference 202100253398
This is a request for an internal review of the response given to me on 23 September 2021 (your ref 202100226158) to my information request dated 27 July concerning the application of crown consent by the Scottish government to the Aquaculture and Fisheries (Scotland) Act 2013 and Regulatory Reform (Scotland) Act 2014.

I wish to have every element of the Scottish government response reviewed, line by line, including each decision to redact whole paragraphs from some documents, specifically Ag Fish bill officials briefing 100413 202100226158 - Enclosure 5.

I would be grateful if you could reassess the refusal to release material based on the notion, set out in the response, that discussions, advice and correspondence about decisions which affect the Queen’s personal interests as a private property owner have the same constitutional and legal force as discussions and advice about the monarch’s constitutional duties. Those are distinct and separate matters.

Where is the case law in Scotland which supports the proposition that the Queen’s personal hereditary and property interests are treated equally to her constitutional interests and role?

Secondly, the Scottish government asserts that a common law obligation of confidence has equal or greater weight to its statutory obligations under the EIRs to release information it holds. Where is the Scottish case law that supports that position? Please provide it.

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.

Regulation 10(4)(e)

I have determined that the decision in relation to the application of regulation 10(4)(e) should be confirmed, with modifications.

Having reviewed the information previously withheld under regulation 10(4)(e), I am satisfied that this exception was appropriately applied to all of the internal legal advice which was previously withheld. I agree that disclosure would breach legal professional privilege and having reconsidered the public interest factors I am also satisfied that the public interest lies in favour of upholding the exception.

An exception under regulation 10(4)(e) was also applied to internal communication in the form of Ministerial briefings, notes and emails between Scottish Government Ministers and officials about the development and processing of the Aquaculture and Fisheries (Scotland) Act 2013 and the Regulatory Reform (Scotland) Act 2014.

I have determined that an exception under regulation 10(4)(e) did not apply to all of the information previously withheld. I have therefore attached a revised copy of Enclosure 5 (Enclosure 5Ammended.pdf). I have also identified one further document (attached as New Enclosure.pdf) which discloses some information falling within the scope of your request, which I concluded was not exempt under regulation 10(4)(e).

When giving further consideration to this information I acknowledge that our initial disclosure did not differentiate between information which was redacted because we considered it to be exempt under this exception and information which was redacted because it did not fall within the scope of your request. As such I have attached a further copy of Enclosure 1 (Enclosure 1 Ammended.pdf) in which I have clearly marked the information which has been redacted because it does not relate to the Crown or Crown consent regarding the Aquaculture and Fisheries (Scotland) Act 2013. You will also note that some information in the document titled ‘New Enclosure.pdf’ has been redacted because it does not relate to the Crown or Crown consent regarding the Aquaculture and Fisheries (Scotland) Act 2013. Hence redactions marked as “Out of Scope” means it was information that was not relevant to your request and therefore did not require to be disclosed.

Regulation 10(5)(d)

Having reviewed the case it remains the Scottish Government’s view that for the reasons set out in the response there is an expectation of confidence in relation to correspondence between the Scottish Government and the Queen’s representatives in relation to the process of obtaining Crown consent which includes discussions about how the legislation applies to the Crown.

Having reviewed the public interest test for the reasons set out in the initial response I consider that the public interest in disclosing that correspondence is outweighed by the Public interest in ensuring full and frank discussions between the Queen’s representatives and the Scottish Government.The public interest is served by the information that is provided to Parliament which can be debated and scrutinised.

I have therefore determined that the decision in relation to the application of regulation 10(5)(d) should be confirmed, without modifications.

Regulation 11(2)

Having reconsidered the information withheld under regulation 11(2) I am satisfied that this exception has been applied to Scottish Government staff below Senior Civil Service grade who have a higher expectation of privacy than their more senior counterparts.

I have therefore determined that the decision in relation to the application of regulation 11(2) should be confirmed, without modifications for the reasons set out in our initial response.

I note that you have requested that we provide case law which supports your interpretation of our position in relation to two matters. Under the EIRs we have a duty to make available environmental information that we hold. Your request for case law is not a request for information held by us and therefore does not fall within the scope of the EIRs.

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.

FOI202100253398 - Information released

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11 page PDF

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