Independence - EU membership discussions: FOI release

Information requested

Information you have regarding discussions with the European Commission with regard to the EU accepting a membership request made by Scotland should the Scottish government achieve independence. In particular have discussions been held regarding the above?

If discussions have been held what is the current position on the EU to Scottish membership. I’d like to set a timescale based on our Brexit exit therefore information from 2016 to present.

Response

I attach a copy of some of the information you requested in the separately attached annex.

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 it is subject to exemptions under sections 29(1) (a), 30(b)(ii) and 32(1)(a) of FOISA. The reasons why these exemptions apply, and our public interest test considerations in relation to these, are explained at the base of this letter.

REASONS FOR NOT PROVIDING INFORMATION
Exemptions apply, subject to the public interest test

29(1)(a), formulation or development of government policy
An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested. The information relates to the formulation and development of the Scottish Government’s policy on Scotland’s eligibility for/progress towards EU membership as an independent country. This policy formulation and development is still ongoing and the Scottish Government is currently in the process of setting out a prospectus series designed to give people information, including on the topic of EU membership, before a stated policy intention to put to the people of Scotland the choice of whether Scotland should be an independent country.

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.

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, we consider that 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. Additionally, topics under discussion require private space to discuss effectively. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, and understand fully their possible implications. Officials’ candour in doing so, and engaging others, will be affected by their assessment of whether the discussions of an independent Scotland’s proposed accession to EU 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.

30(b)(ii), substantial inhibition to free and frank exchange of views
An exemption under section 30(b)(ii) of FOISA (substantial inhibition to free and frank exchange of views for the purposes of deliberation). The information relates to deliberation/exchanges of views on particular issues at preliminary stages of consideration when private space to discuss is essential.

These exemptions are 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.

We recognise that there is some public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the view that there is a greater public interest in ensuring officials – both within Scottish Government and in institutions with which we engage – have the freedom to express, exchange and deliberate views on topics of sensitivity. There are several factors to this weighting, including: the circumstances in which the views were given (during related policy formulation for future EU engagement opportunities); and timing, when disclosure could harm both the development of such approaches and inhibit officials’ ongoing or future exchange of views.

32(1)(a), substantial prejudice to international relations
An exemption under section s32(1)(a)(ii) of FOISA applies to some of the information you have requested. These sections exempt information on the basis i) that disclosure of the information would, or would be likely to, prejudice substantially relations between the UK and any international organisation.

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.

We recognise that there is some public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the view that disclosure of the material would damage relations, undermine trust and hamper future engagement between the UK/Scotland and European stakeholders whose engagement is key to current and future international relations. Release of the information is feasibly expected to have a chilling effect on future diplomatic engagement and has therefore been exempted from release.

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.

FOI 202200325019 - Information released

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1 page PDF

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