Details of the Scottish Government Dalzell agreement: FOI Review
Information request and response under the Freedom of Information (Scotland) Act 2002
Information requested
You expressed that you were not satisfied with our reply to your original Freedom of Information (FoI) request which was allocated reference number 202100267443. The wording of this initial request is outlined below:
“I would like to make a freedom of information request of the Scottish Government for details on the Scottish Government's Dalzell agreement, specifically:
- On what date concerns regarding the indemnity were first raised with Ministers.
- What (i) legal, and (ii) external advice has the Scottish Government taken on the effect or legality of the indemnity.
- What, if any, assessments it has made on financial impact the indemnity could have had if it had effect.
- If any risk assessment was made of the indemnity in 2015 or 16.
If this request is too wide or unclear, I would be grateful if you could contact me as I understand that under the Act, you are required to advise and assist requesters. If any of this information is already in the public domain, please can you direct me to it, with page references and URLs if necessary.
If the release of any of this information is prohibited on the grounds of breach of confidence, I ask that you supply me with copies of the confidentiality agreement and remind you that information should not be treated as confidential if such an agreement has not been signed.”
Upon receipt of the response to this request you submitted the following:
“I would like an external review carried out for my FOI request replied to here. This is on the grounds that the response says there is no valid indemnity on Dalzell, and they therefore have refused to answer two of my questions on the issue, which directly relate to indemnity, on the grounds there was no valid indemnity. However, I believe this is inacurate. The Scottish Government has admitted there was an indemnity, as admitted by Ivan McKee on 15 December 2021 in his statement on Dalzell: "The clause in question granted an enduring indemnity from the Scottish ministers to Longs Steel, whereby the Scottish ministers would be liable to cover the cost of certain liabilities arising from Tata Steel’s ownership of the Lanarkshire plants."
"This, it has been advised, may have broken state aid rules. I believe the use of the term 'valid' in this FOI response is sidestepping the issue. The indemnity is what may have broken state aid rules, and I believe the responder is using this to argue that since the indemnity may have broken the rules, it is not valid. They are then using this as an excuse to not answer the perfectly valid questions about assessments on risk and financial impacts of the indemnity, which the Scottish Government did definitely agree to at the time.”
Response
I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).
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 considered this case again and conducted a comprehensive review of the response. I have concluded that a different decision should be substituted.
On review I have concluded that the exemptions at section 29 of FOISA were applied in error. I am removing our reliance on these exemptions and substituting them for the exemption at 36(1) (confidentiality in legal proceedings) of FOISA. I have concluded that some information is out of the scope of the request, and the information that is in scope was withheld originally under 29(1)(c).The reasons why this exemption is applied is set out in the Annex to this letter.
To facilitate the sale and ensure the continued operation of Dalzell rolling mill, the Scottish Government took ownership of the business for a short period of time while it transferred from Tata Steel UK to Liberty House Group, which is part of GFG Alliance and which continues to operate the rolling mill to this day. Ministers received advice from officials covering risk and financial assessments at the time of the transaction and these submissions are included in the case attachments. The transaction documentation (the Business Purchase agreement and Business Sale agreement) can also be found at https://www.gov.scot/publications/foi-202100216003/ and https://www.gov.scot/binaries/content/documents/govscot/publications/foi-eir-release/2021/07/foi-202100212787/documents/foi---202100212787---information-released/foi---202100212787---information-released/govscot%3Adocument/FOI%2B-%2B202100212787%2B-%2BInformation%2BReleased.pdf.
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
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