Biffa legal case regarding the Deposit Return Scheme: EIR release

Information request and response under the Environmental Information (Scotland) Regulations 2004.


Information requested

1) How much money the Scottish Government has spent contesting the legal case that Biffa has brought against Scottish Ministers following their decision to delay the implementation of its Deposit Return Scheme. Please provide the total cost and any breakdowns available of these costs.

2) Whether the Scottish Government has held any correspondence with Lorna Slater MSP regarding this case and if so please provide the dates and details of this correspondence, including minutes of any meetings, emails, instant messages or letter exchanges.

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

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, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

Question 1

To date, the Scottish Government has spent £167,812.00 on costs related to the legal case brought by Biffa against the Scottish Ministers. The following table shows the costs broken down by financial year:

Financial Year

Amount

2023/24

£5,796.00

2024/25

£162,016.00

Total

£167,812.00

It may help if I explain that legal advice may be sought in both internal and external capacities and that Scottish Government staff do not, as a matter of course, record the proportion of time spent providing advice on particular matters. It is therefore not possible to provide a further breakdown on the total cost and/or expenditure figure accrued by the Scottish Government with regards to legal advice received regarding the ‘Biffa Case’.

The Scottish Government, like all Governments, is necessarily involved in litigation given the range and importance of its responsibilities.

The outlays incurred in litigation are, like all other costs of Government, subject to rules about public finance decision-making and accountability.

Question 2

While our aim is to provide information whenever possible, in this instance an exception under Regulation 10(5)(b) – the Course of Justice, has been applied to the information requested.

This exception 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 exception.

We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is some public interest in releasing the information as part of an open, transparent and accountable government. However, this is outweighed by the right to prepare for the defence of this ongoing litigation where disclosure of that information would likely cause substantial prejudice to our defence of this case and therefore the course of justice.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

Contact

Please quote the FOI reference
Central Correspondence Unit
Email: contactus@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

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