Publication - FOI/EIR release

Social Security Bill - drafts, memoranda and briefings: FOI release

Published: 2 October 2017
Directorate: Social Security Directorate
Topic: Children and families, Equality and rights, Public sector

Information request and response under the Freedom of Information (Scotland) Act 2002.

FOI reference: FOI/17/01996
Date received: 29 August 2017
Date responded: 29 September 2017

Information requested

All drafts of the social security bill prepared before the final version was lodged, all draft memoranda prepared in advance of the finalised versions being lodged and all briefing materials prepared to accompany the above.

Response

I enclose a copy of some of the information you requested.

Some of the information you have requested is available from the Scottish Parliament website. 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.

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 either: sections 29(1)(b) (Ministerial communications), 30(b)(i) and (ii) ( prejudice to the free and frank provision of advice and views),or 36(1) (legal professional privilege), of FOISA apply to that information. The reasons why that exemption(s) applies are explained below.

Reasons for not providing information

Exemptions apply, subject to the public interest test.

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information you have 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 policy positions 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 policy making process.

An exemption under s.30(b)(i) and (ii) of FOISA (prejudice to the free and frank provision of advice and views), applies to some of the information you have requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on the drafting of the Social Security (Scotland) Bill will substantially inhibit such discussions in the future, particularly because the Bill is currently undergoing scrutiny and consideration by the Scottish Parliament.

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 and officials a private space within which to explore and refine the Government's policy position on matters such as the drafting of the Social Security (Scotland) Bill until the Government as a whole can adopt a position that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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. The release of the content of such legal advice is likely to be appropriate only in highly compelling cases. This has been recognised by both the Scottish Information Commissioner and the courts - see, for example, the House of Lords case, Three Rivers District Council and others v Governor and Company of the Bank of England (2004) UKHL 48.

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