Ministerial briefing for meeting of Joint Ministerial Committee: FOI release

FOI reference: FOI/17/01555
Date received: 6 July 2017
Date responded: 25 July 2017

Information requested

The briefing given to Mike Russell and Nicola Sturgeon ahead of meetings of the Joint Ministerial Council from 23 June 2016.

Response

1. Scope of request - I have assumed that you are referring to meetings of the Joint Ministerial Committee of the UK Government and the three Devolved Administrations (which is sometimes erroneously referred to as the Joint Ministerial Council) rather than the Joint Ministerial Council which refers to meetings between the UK Government and the British Overseas Territories. The Joint Ministerial Committee meets in a number of different formats, including JMC (Plenary), JMC (Europe) and JMC (EU Negotiations). There have been two meetings of the JMC (Plenary) and four of the JMC (EU Negotiations) since 23 June 2016 which are in scope. Neither the First Minister nor Mr Russell attend meetings of the JMC (Europe) so these meetings are not in scope.

2. Some of the information you have requested is available online. I have provided the following links to:

• the Joint Communiqué from the October meeting of JMC Plenary which established the JMC on EU Negotiations (JMC EN) /publications/joint-ministerial-committee-minutes-october-2016/

• the Joint Communiqué following the November meeting of the JMC (EN) https://www.gov.uk/government/publications/joint-ministerial-committee-eu-negotiations-communique-9-november-2016

• the Scottish Government statement following the November meeting of the JMC (EN) http://news.gov.scot/news/statement-following-jmc-en

• a map of the Palace of Westminster provided ahead of the December meeting of the JMC (EN) http://www.parliament.uk/documents/facilities/maps/colmap.pdf

• the Joint Communiqué following the December meeting of the JMC (EN) /publications/jmceu-7dec2016/

• the Scottish Government statement following the December meeting of the JMC (EN) /news/concerns-remain-over-lack-of-clear-article-50-plan /

• The Prime Minister's 12 negotiating objectives for Brexit https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech

• The Scottish Government's publication "Scotland's Place in Europe", which was discussed at the January meeting of the JMC (EN) http://www.gov.scot/Publications/2016/12/9234

• The Scottish Government statement following the January meeting of the JMC (EN) /news/jmc-meeting-on-brexit/

• The Joint Communiqué from the most recent JMC (Plenary) https://www.gov.uk/government/publications/joint-ministerial-committee-Communiqué-30-january-2017

• The UK Government's White Paper "The United Kingdom's exit from and new partnership with the European Union White Paper" which was discussed at the February meeting of the JMC (EN) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf

• The Welsh Government's White Paper "Securing Wales' Future" which was discussed at the February meeting of the JMC (EN) https://beta.gov.wales/sites/default/files/2017-01/30683%20Securing%20Wales%C2%B9%20Future_ENGLISH_WEB.pdf

• The Scottish Government statement following the February meeting of the JMC (EN) /news/scotlands-views-must-feature-in-article-50-letter/

[NB: No Joint Communiqués could be agreed at the January or February meetings of the JMC (EN) due to the situation in Northern Ireland.]

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

3. 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 sections s.28(1) Relations Within the UK; s.29(1)(b) Ministerial Communications; s.30(b)(i) Free and Frank Provision of Advice; s.30(b)(ii) Free and Frank Exchange of Views; s.30(c) – substantial prejudice to the effective conduct of public affairs [in relation to communications/meetings with external stakeholders and 38(1)(b) Personal Information of FOISA apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

4. Finally in this instance, some of the information you have requested is not held by the Scottish Government for the purposes of FOISA because we received it in confidence from the UK Government. This means that, under the terms of section 3(2)(a)(ii) of FOISA, we are unable to disclose it in response to your request. However, you may wish to submit a new request under the Freedom of Information Act 2000 (FOIA) to the Cabinet Office at FOI Team, Cabinet Office, Room 3.32, 1 Horse Guards Road, London, SW1A 2HQ (Email: foi-team@cabinetoffice.gov.uk) who may be able to help you further.

Reasons for not providing information

An exemption applies

An exemption under section s.38(1)(b) of FOISA applies to a small amount of the information you have requested because it is personal data of a third party, ie names/contact details of individuals, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998.

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.

An exemption applies, subject to the public interest test.

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government, Welsh Government and Northern Ireland Executive because it would reveal candid internal discussion about other administrations' policies, could prematurely reveal negotiating positions and because the effective conduct of inter-governmental relations depends upon maintaining trust and confidence between the Scottish Government and the UK Government, Welsh Government and Northern Ireland Executive.

It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. The Memorandum of Understanding between the UK Government and the devolved administrations, which established the Joint Ministerial Committee states that the proceedings of each meeting of the JMC will be regarded as confidential by the participants in order to permit free and candid discussion. (Section A1.11). It is seen as a valuable forum for Ministers from all four administrations to participate in frank confidential discussion on issues that may be sensitive in nature. Disclosure of this information will mean that the UK Government, Welsh Government and Northern Ireland Executive are likely to be more reluctant to communicate as frequently and openly with the Scottish Government in 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 maintaining close working relationships between the Scottish Government and UK Government, Welsh Government and Northern Ireland Executive and in protecting the free exchange of information and views between the administrations at meetings of the Joint Ministerial Committee. There is no public interest in disclosing information when that will damage relationships and disrupt future communications as that may impact on the effectiveness of future inter-governmental relations.

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 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 decisions can be taken. 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.

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. These exemptions apply 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 exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final line to take are used. Disclosing the content of free and frank briefing material on some matters discussed at the Joint Ministerial Committee will substantially inhibit such briefing in the future, particularly because such topical issues are likely to remain in discussion and deliberation meaning that final decisions have not been taken, and these discussions relate to sensitive issues such as negotiating positions.

These exemptions are 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 exemptions. 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 free and frank advice and views to Ministers in lines to take. It is clearly in the public interest that Ministers can properly provide sound information to counterparts and Parliament (to which they are accountable), and robustly defend the Government's policies and decisions. They need full and candid advice from officials 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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