Mitigation of 2 child benefit cap queries: FOI Review

Information requested

Original request 202400443972

1. The time and date the decision was taken to make this [mitigation of the two-child limit] a Scottish Government policy that would be announced in the budget.

2. A full copy of the chain of correspondence that shows the discussions that were had within the Scottish Government about the decision.

3. A copy of the first email or message that opened discussion about potentially backing this policy. Please show the date and time.

4. The last email or message that shows the policy being signed off and agreed by the relevant decision makers. Please show the date and time.

5. A copy of the first internal email or message to the relevant Scottish Government workers and ministers that communicates that this policy had been agreed and would be announced at the Scottish Government budget day.

6. Confirmation of who started the discussions the Cabinet Secretary referred to [during the 5 December Social Justice and Social Security Committee appearance].

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) where you asked for:

1. The time and date the decision was taken to make this [mitigation of the two-child limit] a Scottish Government policy that would be announced in the budget.

2. A full copy of the chain of correspondence that shows the discussions that were had within the Scottish Government about the decision.

3. A copy of the first email or message that opened discussion about potentially backing this policy. Please show the date and time.

4. The last email or message that shows the policy being signed off and agreed by the relevant decision makers. Please show the date and time.

5. A copy of the first internal email or message to the relevant Scottish Government workers and ministers that communicates that this policy had been agreed and would be announced at the Scottish Government budget day.

6. Confirmation of who started the discussions the Cabinet Secretary referred to [during the 5 December Social Justice and Social Security Committee appearance].

Regarding part 1 of your original request, you have questioned why we have not released the time and date a decision was taken to make mitigation of the two-child limit a Scottish Government policy.

Regarding part 2 of your original request, you have questioned why no correspondence has been released and noted previous examples where email communications have been provided, with relevant redactions applied.

I have concluded that the original decision should be confirmed with some modifications.

In reviewing this request, I have revisited all documents that fall within the scope of your request and ensured that all of these documents have been reconsidered for release and set out below the reasoning for upholding the original decision taken. I have also considered the exemptions applied and, where appropriate, application of the relevant public interest test. I have determined that exemptions under section 29(1)(a)(formulation or development of government policy) continue to apply to some of the information you have requested, as well as exemptions under section 29(1)(b) (Ministerial communications).

Review

As mentioned above, exemptions under section 29(1)(a)(development or formulation of government policy), as well as section 29(1)(b)(Ministerial communications) continue to apply to most of the information you have requested. I acknowledge that our response to you on 8 January 2025 could have been more helpful in explaining why these exemptions apply before, where appropriate, going on to consider the public interest test for each exemption independently. I have therefore set out some further reasoning below which I hope you will find helpful.

Section 29(1)(a) – Formulation or Development of Government Policy

Exemptions have been applied under section 29(1)(a) (formulation or development of government policy) of FOISA in respect of information you have requested. Where an exemption is applied under section 29(1)(a), this is subject to the ‘public interest test’. Therefore, taking account of all of the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying this exemption. I have found that, on balance, the public interest lies in favour of upholding this exemption.

We recognise that there is public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is greater public interest in high quality policy and decision making, and in properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether discussions 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.

Furthermore, while you have provided examples of previous occasions where either (i) the time and date a decision has been taken on a policy; or (ii) redacted email correspondence has been released, all FOI requests must be reviewed on an individual basis. In conducting my review, I have considered the specific circumstances relevant to the formulation or development of this government policy and note the ongoing Scottish Government budget setting process, which has not yet been passed by the Scottish Parliament. Upholding the integrity of the budget process is of paramount importance and release at this time of communications regarding formulation or development of government policy to be included in this budget could prejudice this process. As such, I have upheld the original application of section 29(1)(a) in respect of most of the relevant information. Regarding the ‘public interest test’, I have determined that the potential harm in releasing this information, at this time, outweighs the public interest in its disclosure.

However, when reviewing your request, I have determined that exemptions under section 29(1)(a) have been applied in error to some of information requested as this has been applied to factual information which does not relate to the formulation of government policy to mitigate the two-child limit. Regarding the information to be released, I have enclosed a copy of this in the Annex to this letter. I would flag that exemptions do still apply to much of the information contained in this document, namely section 29(1) (a).

Section 29(1)(b) – Ministerial Communications

An exemption under section 29(1)(b) of FOISA (Ministerial communications) also applies to some of the information requested because it relates to communications between Scottish Ministers.

This exemption is similarly 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, there is a greater public interest in allowing Ministers a private space within which policy positions can be explored and refined, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy making process.

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.

FOI 202500447154 - Information released - Annex

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