Publication - FOI/EIR release

Correspondence or Analysis on EU membership eligibility: FOI Appeal

Published: 25 March 2020
Directorate: External Affairs Directorate
Topic: Brexit, Public sector
FOI reference: FOI/201900001907 Appeal
Date received: 11 August 2019
Date responded: 20 March 2020

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

Information requested

“I have noted that the language being used by the Scottish Government in relation to the possibility of Scotland being independent after Brexit seems to "an independent European country", not an "independent country in the EU". As such, there are two parts to my query.
1. Details of any guidance given in relation to the use of the two phrases above.
2. Any correspondence or analysis the Scottish Government has carried out on our eligibility for EU membership, either if we could continue to "remain" in the EU or having to reapply under the Copenhagen criteria once the UK has left.”

Response

Following the Scottish Information Commissioner’s Decision 027/2020, I have now completed a further review of our response to your request dated 11 August 2019 under the Freedom of Information (Scotland) Act 2002 (FOISA) for:
“I have noted that the language being used by the Scottish Government in relation to the possibility of Scotland being independent after Brexit seems to "an independent European country", not an "independent country in the EU". As such, there are two parts to my query.
1. Details of any guidance given in relation to the use of the two phrases above.
2. Any correspondence or analysis the Scottish Government has carried out on our eligibility for EU membership, either if we could continue to "remain" in the EU or having to reapply under the Copenhagen criteria once the UK has left.”

I have concluded that a different decision should be substituted.
We have conducted further searches and reapplied a broader definition of the term of ‘analysis’ following the advice from the Information Commissioner. However, the result of these further searches has not identified any additional information held in relation to the former parts of your request. I can therefore confirm that we do not hold any information relating to:

Guidance on the use of “an independent European country” over “independent country in the EU.”
Correspondence from Ministers or Special Advisors to any of the European Institutions regarding membership in either scenario stated above.
Analysis which looks at the Scottish Government eligibility for EU membership if the whole of the United Kingdom remains a member state.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.
In our original response to you dated 6 September 2019, we had identified one document relating to “analysis the Scottish Government has carried out on our eligibility for EU membership, either if we could continue to "remain" in the EU or having to reapply under the Copenhagen criteria once the UK has left”. This document was withheld in full under section 29(1)(a) (formulation or development of government policy). I have reconsidered the application of this exemption and concluded that some of the information was incorrectly withheld under section 29(1)(a), and this information is now attached.

Furthermore, our additional searches undertaken during this review has identified a further three documents falling within scope of this part of your request, and these documents are also attached. I apologise for the delay in providing this information to you.
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 29(1)(a) (policy formulation), and 30(b)(ii) (free and frank exchange of views) of FOISA applies to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

Additionally, some of the information in the attached document titled “Routes – technical summary – April 2018“ has been redacted as it is out of scope of your request. This information does not relate to the Scottish Government’s analysis on our eligibility for EU membership, and therefore is not relevant to your request.

ANNEX
REASONS FOR NOT PROVIDING INFORMATION
An exemption applies, subject to the public interest test
An exemption under section s29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information you have requested as it relates to the formulation and development of the Scottish Government’s policy on Scotland’s eligibility for EU membership, which is still ongoing.
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 strong public interest in relation to Scotland’s eligibility for EU membership, and therefore there is a public interest in disclosing this information as part of an 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 ongoing discussions on Scotland’s eligibility for EU membership will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to a small amount of the information 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 Scotland’s future constitutional options will substantially inhibit such
discussions in the future, particularly because these discussions are still ongoing and decisions have not been taken, and these discussions relate to sensitive issues such as the UK’s withdrawal from the EU and the circumstances surrounding Scotland’s constitutional 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 Ministers and officials a private space within which to explore and refine
the Government’s policy position on Scotland's constitutional future, until the Government as a whole can adopt a policy 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 policy 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 policy making process, which would not be in the public interest.

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.