Deposit Return Scheme correspondence and legal preparations: EIR release

Information requested

1. Is the Scottish Government preparing for lawsuits from businesses due to the deposit return scheme being delayed? If so, how are they preparing; if not, why?

2. Lorna Slater has repeatedly stated that the DRS is "cost neutral" could you supply the evidence to go with this?

3. All correspondence between businesses and Lorna Slater/her office regarding the deposit return scheme between January 2023 until 21 April 2023; or if this is too much, March 2023 until 21 April 2023.

4. All correspondence between Lorna Slater and Humza Yousaf regarding the DRS between March 2023 and 21 April 2023.

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.

Response

Question 1

The Scottish Government considered a range of factors and impacts relating to recent amendments to the Deposit Return Scheme, including any potential legal matters that may arise as a result of these.

In regards to your request for information on how the Scottish Government would prepare for any potential legal actions, an exception under regulation 10(4)(e) of the EIRs (Internal communications) applies to the information you have requested. This exception applies because it is internal legal advice and disclosure would breach legal professional privilege.

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 a public interest in disclosing information as part of open, transparent and accountable 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.

Question 2

While our aim is to provide information whenever possible, in this instance the Scottish Government does not hold the information you have requested because the Minister for Green Skills, Circular Economy and Biodiversity has not stated that the Deposit Return Scheme (DRS) would be cost neutral in its entirety. Therefore, this is a formal notice under Regulation 10(4)(a) of the EIRs confirming that the Scottish Government does not hold this information.

It may help if we explain that the Minister for Green Skills, Circular Economy and Biodiversity, Lorna Slater, in her statement to the Net Zero, Energy and Transport (NZET) Committee of 14 March 2023 advised that the DRS, in terms of the 20p deposit itself, will be cost neutral to consumers when they purchase and return items within scope of the scheme.

Subsequently once the scheme launches this means that people will pay a 20p deposit when they make a qualifying purchase, between 100ml and 3L in size, and they will get this back when they return said items to a collection point.

The full report of the committee meeting that you may find helpful can be found here.

The Scottish Government has also published a full Business Case Addendum on 16 March 2020 which provides additional information on the development of the DRS including analysis of costs for businesses, local authorities and other participants of the scheme.

Further information and publications regarding DRS that you may wish to review can be found here.

Question 3 

We have included copies of the information you have requested in Annex B.

On reviewing materials within the scope of your request, exceptions have been applied in line with the EIRs. The exceptions applied can be found in Annex A.

Question 4

We have included copies of the information you have requested in Annex B.

On reviewing materials within the scope of your request, exceptions have been applied in line with the EIRs. The exceptions applied can be found in Annex A.

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.

EIR - 202300352797 - information released - Annex A

File type

1 page PDF

File size

64.4 kB

EIR - 202300352797 - information released - Annex B

File type

12 page PDF

File size

108.6 kB