Correspondence relating to devolved vs reserved matters: FOI release

Information requested

1. Any correspondence held by the Scottish government between the permanent secretary John Paul Marks and the cabinet secretary Simon Case, in relation to devolved vs reserved matters. By this I mean things like the constitution and foreign affairs – potential examples would be the subject of a “minister for independence” being appointed and civil servants working for them, or Scottish government ministers undertaking engagements abroad being accompanied by UK government aides.
2. Any guidance sought or issued from the civil service on the topic of devolved vs reserved matters, specifically on the subject of a “minister for independence” being appointed and of civil servants working for them.
3. Any briefing notes prepared for the permanent secretary in advance of appearing at the Scottish Parliament’s Finance and Public Administration committee on 16 May.

We discussed the interpretation of the third part of your request by telephone on 1 August. You confirmed that this part of the request should be understood in light of the first two parts i.e. that you were specifically seeking information from the briefing notes which relates to ‘devolved vs reserved matters’.

Response

1. The information within scope of part 1 of your request meets the definition of ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs). We are therefore 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 this part of 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 information under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to all of the information you have requested because it is internal communication between officials about the Deposit Return Scheme.

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 release 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 DRS will be disclosed in the near future, when it may undermine or constrain the Government’s view on that issue while it is still under discussion and development.

2. The Scottish Government does not hold any information relevant to part 2 of your request. This is because there has been no guidance sought or issued from the civil service of the type you describe. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. Ministerial appointments and the relationship between ministers and civil servants are covered by the Ministerial Code - Scottish Ministerial Code: 2023 Edition - gov.scot (www.gov.scot) which has recently been updated.

3. Attached is a copy of some of the information relevant to part 3 of your request. An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This 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 purposes of deliberation. The exemption recognises the need for Ministers and officials to have a private space within which to seek advice and views from colleagues on matters of a high profile or sensitive nature. Disclosing the content of free and frank briefing material prepared for senior officials to support their participation in a Scottish Parliament Committee session will substantially inhibit such briefing in the future.

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 a private space within which senior officials can be provided with free and frank advice by colleagues. It is clearly in the public interest that senior officials are briefed fully and properly in advance of providing evidence to the Scottish Parliament (to which the Scottish Government is accountable). They need full and candid advice from colleagues to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

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FOI202300367840 - Information released

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