Publication - FOI/EIR release

Joint Ministerial Committee, Plenary and EU Negotiations forums: FOI release

Published: 2 May 2018
Directorate: Constitution Directorate
Topic: Constitution and democracy, Public sector

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

FOI reference: FOI/18/00696
Date received: 6 March 2018
Date responded: 3 April 2018

Information requested

The briefings provided to Scottish Government Ministers for meetings of the Joint Ministerial Committee of the UK Government and the three Devolved Administrations from 12 July 2017. I would also like to submit the same FOI for meetings between Nicola Sturgeon and Theresa May within the same timeframe.

You further clarified that you would like information pertaining to all three JMC forums, Plenary, EU Negotiations and Europe, over the given time period.

Response

There were 6 meetings which fell within the scope of your request:

The Joint Ministerial Committee (Europe) on 11 October 2017
The Joint Ministerial Committee (EU Negotiations) on 16 October 2017
A meeting between the First Minister and Prime Minister on 14 November 2017
The Joint Ministerial Committee (Europe) on 06 December 2017
The Joint Ministerial Committee (EU Negotiations) on 12 December 2017
The Joint Ministerial Committee (EU Negotiations) on 22nd February 2018

I enclose a copy of some of the information you requested. This information is attached to my email.

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

the Joint Communiqué from the meeting of the Joint Ministerial Committee (EU negotiations) on 16 October 2017 /publications/joint-ministerial-committee-communique-october-2017/
the Joint Communiqué from the meeting of the Joint Ministerial Committee (EU negotiations) on 12 December https://www.gov.uk/government/publications/joint-ministerial-committee-communique-12-december-2017
Ministerial engagements record http://www.gov.scot/About/People/14944/Events-Engagements/MinisterialEngagements
First Minister's letter to the Prime Minister on plans for a transition arrangement https://news.gov.scot/news/first-minister-letter-to-prime-minister-on-eu-withdrawal
Letter to Joan McAlpine MSP 17 October 2017 http://www.parliament.scot/S5_European/General%20Documents/CTEER_2017.10.17_JMC(EN).pdf
Letter to Bruce Crawford MSP 17 October 2017 http://www.parliament.scot/S5_Finance/General%20Documents/Report_back_from_JMC__16_October_2017.pdf
Letter to Bruce Crawford MSP 14 December 2017 http://www.parliament.scot/S5_Finance/General%20Documents/Letter_from_Michael_Russell_EU_Negotiations_14_December_2017.pdf
Letter to Jon McAlpine MSP 19 February 2018 http://www.parliament.scot/S5_European/General%20Documents/CTEER_2018.02.19_JMC(EN).pdf
European Commission Paper proposing a Draft Legal Text on Transition Arrangement - https://ec.europa.eu/commission/publications/position-paper-transitional-arrangements-withdrawal-agreement_en
UK Government Paper on the Draft Legal Text for the Implementation Period - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/682894/Draft_Text_for_Discussion_-_Implementation_Period__1_.pdf
The Joint Ministerial Committee Communiqué of the meeting on 22 February 2018 /publications/joint-ministerial-committee-communique-february-2018/

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 exemption(s) under s.28(1), s.30(b)(i), s.30(b)(ii), and s.38(1)(b) of FOISA apply to that information. The reasons why those exemptions apply are explained below.

Also, Information is exempt under section 29(1)(a) as it relates to the formulation or development of government policy.

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.

Reasons for not providing information

An exemption applies.

An exemption under section s.38(1)(b) (Personal data relating to a third party) 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.

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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