Correspondence relating to UK Internal Market Act Exclusions: FOI release

Information requested

1. Please could you supply me with all correspondence held by the Scottish Government from the UK Government that sets out implementation, guidance and exemption application procedures required by the Act, as set out here: https://www.legislation.gov.uk/ukpga/2020/27/section/10/enacted

2. Please could you confirm the earliest possible date that the Scottish Government was able to seek additional exclusions from IMA?

3. Please could you confirm how many times Scottish Ministers have sought further exemptions from the IMA subsequently, summarise what these exemptions were for, and please could you provide all correspondence and related records that cover exchanges between Scottish Ministers and UK Government Ministers that relates to these exemptions?

Response

The answer to your specific requests are set out below.

1. A process for agreeing exclusions from the Market Access Principles of the United Kingdom Internal Market Act 2020 (‘the Act’) for areas covered by Common Frameworks (in accordance with section 10 and section 18 of the Act) was developed jointly between the United Kingdom Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive. This was confirmed in a Written Ministerial Statement made by the UK Government in the UK Parliament, which can be found at the following link: https://questions-statements.parliament.uk/written-statements/detail/2021-12-09/hcws459. The published process is available at the following link: https://www.gov.uk/government/publications/process-for-considering-ukim-act-exclusions-in-commonframework-areas.

2. The Act, including provisions relating to exclusions from the Market Access Principles, came into force on 1 January 2021.

3. The agreed process described and linked to above allows governments to seek an exclusion for a policy area covered by a Common Framework, with decisions reached within Common Framework forums confirmed by Ministers. The Scottish Government has sought exclusions under the Resources and Waste Framework to cover regulations prohibiting the sale of single-use plastics, and the Deposit Return Scheme. The Act also provides for policy areas not covered by Common Frameworks to be excluded from the scope of the Market Access Principles. The Scottish Government requested that the UK Government add ‘heat regulation’ and ‘heat networks’ to the list of excluded areas listed in Schedule 2 of the Act, in response to a consultation conducted by the UK Government. Ministerial correspondence relating to the seeking of these exclusions is included as attachments to this response.

Some of the information you have requested (documents 9 and 10 of the information in scope) is available from Internal Market Act: correspondence - gov.scot (www.gov.scot). Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

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 exemptions under sections s.28(1) (relations within the UK), and s.30 (c) (effective conduct of public affairs) apply. The reasons why these exemption apply are explained in the Annex to this letter. Some information has been withheld because an exemption under s.33(1) (b) (substantial prejudice to commercial interests) of FOISA applies to that information.

ANNEX A

1. Section s.28(1) (relations within the UK), and s.30 (c) (effective conduct of public affairs)

Exemptions under section 28(1) (relations within the UK) and s.30 (c )(effective conduct of public affairs) apply because some of the information, namely a draft Statutory Instrument (Document 26) is intended by the UK government to be laid before the UK Parliament. It, and related correspondence (Documents 25 and 27) have been shared with the Scottish Government in confidence for the specific purposes of seeking the consent of the Scottish Government, which is a statutory requirement. 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 and that its disclosure would be helpful in order to aid understanding of the content of related correspondence. However, the broader public interest would be undermined by the consequences of disclosure. Disclosing it before it had been laid in the UK Parliament would undermine the responsibility of the UK Government to its Parliament and be likely to lead to information not being disclosed in future. This would inhibit the ability of the Scottish Government to scrutinise draft legislation and assess its implications in the future.

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FOI 202300357760 - Information Released - Annex A

File type

29 page PDF

File size

1.7 MB

FOI 202300357760 - Information Released - Annex B

File type

28 page PDF

File size

2.9 MB