Correspondence regarding Trusts and Succession Scotland Bill 2023: FOI release

Information requested

1) All correspondence, sent and received, between the Scottish Government and representatives of HM the Queen and/or HM the King, including the monarch's legal representatives, regarding the Trusts and Succession (Scotland) Bill 2023 and the application of crown consent to that bill in line with rule 9.11 of standing orders for the Scottish parliament;

2) All correspondence, sent and received, between the Scottish Government and representatives of HM the Queen and/or HM the King, including the monarch's legal representatives, regarding any changes sought by the representatives of either the Queen or the King to any parts of that bill;

3) Minutes of Scottish Government meetings regarding obtaining crown consent to that bill, as above;

4) Internal emails involving Scottish Government officials and ministers regarding seeking and obtaining crown consent to that bill;

5) Briefings, memos or other documents written for Scottish ministers regarding (wholly or in part) the application of crown consent to this bill, including but not exclusively, ministerial responses on the topic of crown consent for use during parliamentary evidence sessions, parliamentary debates or for parliamentary questions. (Noting that the government has released this material following previous requests.)

Response

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 17(1) (information not held), 25(1) (information otherwise accessible), 36(1) (confidentiality in legal proceedings), 38(1)(b) (personal information) and 41(a) (communications with His Majesty, the Royal Family or the Royal Household) of FOISA applies to that information. The reasons why those exemptions apply are explained below.

Section 17(1) – Information not held

In relation to point 2, the Scottish Government does not have the information you have requested. This is because none of the documentation we hold meets the description of the information requested under point 2.

In relation to point 3, the Scottish Government does not have the information you have requested. This is because no Scottish Government meetings were held on the subject of obtaining Crown consent to the Trusts and Succession Bill.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested in relation to point 2 and 3 of your request for information.

Section 25(1) – information otherwise accessible

When a Scottish Government Bill is published on the Scottish Parliament website a number of accompanying documents are also published. These include a Policy Memorandum. This document includes a reference to Crown consent. This document is accessible on the Scottish Parliament website at the following link Introduced | Scottish Parliament Website For ease of reference the relevant paragraph has been set out below:

Extract from Policy Memorandum

CROWN CONSENT

157. Paragraph 7 of Schedule 3 to the Scotland Act 1998 requires that Crown consent be signified to the Parliament if the same Bill would need such consent were it passed by the UK Parliament. Crown consent is therefore required where a Scottish Bill impacts the Royal prerogative, the hereditary revenues of the Crown or the personal property or interests of the Sovereign. As the Bill is drafted on introduction, it is the Scottish Government’s expectation that, in order to comply with Rule 9.11 of the Parliament’s Standing Orders, Crown consent will be required. The Scottish Government’s view is that the general reforms to the Scots trust law made by Part 1 of the Bill may impact the personal property of the Crown to the extent that such property may be, or may come to be, held in trust. By altering the rules governing the management and operation of trusts, the Bill has potential to affect the administration of trust property in which the Crown has an interest (whether as truster, trustee or beneficiary).

Section 36(1) – confidentiality in legal proceedings

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege. 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 release as part of open and transparent 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.

Section 38(1)(b) – Personal data relating to third party

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. names/contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

Section 41(a) – communications with His Majesty, the Royal Family or the Royal Household

An exemption under section 41(a) of FOISA (communications with His Majesty, etc.) applies to some of the information requested as it relates to communications with His Majesty The King, the Royal Family, or the Royal Household. It is important to maintain the ability of the Scottish Government and representatives of His Majesty to engage in free and frank discussions about matters that relate to the Crown. Disclosing the content of such correspondence is likely to mean that future communications will be less open and less frequent, with less exchange of information, which would negatively affect the process of obtaining King’s consent in future. For this reason, we consider the public interest in the disclosure of information would be outweighed by the public interest in avoiding disclosure which could damage that relationship and disrupt future communications.

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 202300391150 - Information Released - Annex

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31 page PDF

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647.9 kB