Non-Domestic Rates (Liability for Unoccupied Properties) (Scotland) Bill correspondence: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002.
Information requested
1. The correspondence that first informed the Scottish Government about the drafting error with the Non-Domestic Rates (Scotland) Act 2020 which pointed out that the amendments made by the 2020 Act to devolve Empty Property Relief had not had the intended legal effect.
2. All correspondence between relevant Scottish Government officials that confirmed this error.
3. When the First Minister, the Deputy First Minister, the Cabinet Secretary for Finance and Local Government and the Minister for Public Finance were informed of this error. Please provide the correspondence that informed them of this error or the minutes of the meeting where they were informed of this or any other means by which this was communicated to them.
4. All correspondence from relevant Scottish Government officials, ministers and special advisers discussing the financial implications of this error since 1 August 2025 including calculations that were included in the Financial Memorandum for the Non-Domestic Rates (Liability for Unoccupied Properties) (Scotland) Bill.
You also indicated that the correspondence referred to in requests one and two are referred to in paragraph 21 of the Scottish Government’s policy memorandum which can be seen here:
Response
1. The correspondence that first informed the Scottish Government about the drafting error with the Non-Domestic Rates (Scotland) Act 2020 which pointed out that the amendments made by the 2020 Act to devolve Empty Property Relief had not had the intended legal effect.
I enclose a copy of some of the information you requested. 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 section 30(b) (prejudice the effective conduct of public affairs), section 36(1) (confidentiality in legal proceedings) and section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex to this letter.
2. All correspondence between relevant Scottish Government officials that confirmed this error.
While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under sections 36(1) (confidentiality in legal proceedings) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex to this letter.
3. When the First Minister, the Deputy First Minister, the Cabinet Secretary for Finance and Local Government and the Minister for Public Finance were informed of this error. Please provide the correspondence that informed them of this error or the minutes of the meeting where they were informed of this or any other means by which this was communicated to them.
I enclose a copy of some of the information you requested. The Cabinet Secretary for Finance and Local Government, the Deputy First Minister and Cabinet Secretary for Economy and Gaelic, and the Minister for Public Finance were first informed of a potential error on 21 August 2025. The First Minister was first informed of this on 2 September 2025.
While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under section 30(b) (prejudice the effective conduct of public affairs), section 36(1) (confidentiality in legal proceedings) and section 38(1)(b)(personal information) of FOISA applies to that information. The reasons why these exemptions applies are explained in the Annex to this letter.
4. All correspondence from relevant Scottish Government officials, ministers and special advisers discussing the financial implications of this error since 1 August 2025 including calculations that were included in the Financial Memorandum for the Non-Domestic Rates (Liability for Unoccupied Properties) (Scotland) Bill.
I enclose a copy of some of the information you requested.
While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under section 29(1)(a) (formulation or development of Scottish Government policy), 29(1)(b) (Ministerial communications), section 30(b) (prejudice the effective conduct of public affairs), section 33(1)(b) (commercial interests), section 36(1) (confidentiality in legal proceedings) and section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption(s) applies are explained in the Annex to this letter.
Some of the information you have requested is available from Financial Memorandum, The Non-Domestic Rates (Liability for Unoccupied Properties) (Scotland) Bill - Business and Regulatory Impact Assessment - gov.scot and Emergency Bill Aims to Fix Non-Domestic Rates Error in Scotland. The Financial Memorandum for the Bill sets out the costs associated with the measures introduced by the Bill. The Business and Regulatory Impact Assessment also provides and assessment of the impact on the groups / sectors affected.
Annex
An exemption applies
An exemption(s) under section 38(1)(b) (personal information) of FOISA applies to some of the information you have requested because it is the personal data of a third party, i.e. the names or 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.
Exemptions apply, subject to the public interest test
An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on non-domestic rates.
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, 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. 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 the discussions on recovery costs in relation to non-domestic rates levied on unoccupied properties will be disclosed, when it may undermine or constrain the Government’s view on that policy.
An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers.
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, there is a greater public interest in allowing Ministers a private space within which issues can be explored and refined, until the Government as a whole can reach a decision 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 decision making process.
An exemption under section s.30(b)(i) (free and frank provision of advice) and 30(b)(ii) (free and frank exchange of views) of FOISA applies to some of the information you have requested.
The exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purpose of deliberation.
The exemption recognises the need for Ministers or officials to have a private space within which to discuss issues and options internally before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice or views on a potential error with the Non-Domestic Rates (Scotland) Act 2020 will substantially inhibit the provision of such advice or views in the future, particularly because all non-domestic rates policy is set out in legislation and discussed regularly in the context of the Scottish Budget each year.
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 exemptions.
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 a private space within which officials can provide full free and frank advice to Ministers and other officials as part of the process of exploring and refining the Government’s policy position on nondomestic rates until the Government as a whole can adopt a decision that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence. Premature disclosure is likely to undermine the full and frank discussion of issues within the Scottish Government, which in turn will undermine the quality of the decision- making process and which would not be in the public interest.
An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of a company as disclosing this information would be likely to give their competitors an advantage and so could significantly harm their commercial business.
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 and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies and enabling estimates of financial implications to be suitably informed.
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.
Further, some of the information in some of the documents is not considered to be within scope of your request, as it is about a different topic, and has been redacted.
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Central Correspondence Unit
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