Details of the Scottish Government Dalzell agreement: FOI release

Information requested

Details on the Scottish Government's Dalzell agreement, specifically:

On what date concerns regarding the indemnity were first raised with Ministers.

What (i) legal, and (ii) external advice has the Scottish Government taken on the effect or legality of the indemnity.

What, if any, assessments it has made on financial impact the indemnity could have had if it had effect.

If any risk assessment was made of the indemnity in 2015 or 16.

If any of this information is already in the public domain, you asked that we direct you to it, with page references and URLs if necessary.

If the release of any of this information is prohibited on the grounds of breach of confidence, you asked that we supply you with copies of the confidentiality agreement.

Response

Scottish Government officials initially informed Ministers of the potential presence of State Aid with respect to its 2016 contract with Tata Steel UK on 17 August 2021. Thereafter officials were asked to undertake further investigation including obtaining additional specialist advice.

The Scottish Government is not able to share legal advice to Ministers on the basis of section 2.38 of the Ministerial Code which states that Ministers must not divulge either who provided the advice or its contents (whether it is from the Law Officers or from anyone else). This applies to all forms of legal advice, including advice on a particular subject or advice associated with clearance of a document. The statement made to Parliament on 15 December 2021 by the Minister for Business, Trade, Tourism and Enterprise summarised the Government’s position that no valid indemnity relating to the Dalzell steelworks exists, therefore there is no financial impact to be assessed. However, you might wish to be aware that a soil and groundwater contamination liability assessment covering the Lanarkshire steelworks was prepared for the Scottish Government in 2016.

A copy of the report with redactions in line with FOISA exemptions is available from the Scottish Government website here.  https://www.gov.scot/binaries/content/documents/govscot/publications/foi-eir-release/2021/07/foi-202100216003/documents/foi202100216003---information-released-2/foi202100216003---information-released-2/govscot%3Adocument/FOI202100216003%2B-%2BInformation%2Breleased%2B2.pdf.

In facilitating the sale and purchase of the Lanarkshire steel plants, Scottish Government officials sought external advice as the guidance of the Scottish Public Finance Manual recommends. As part of the process for the transaction between Long Steel UK Limited, TATA Steel UK Limited and The Scottish Ministers a business purchase agreement was drawn up. This document is in the public domain. FOI+-+202100212787+-+Information+Released.pdf (www.gov.scot).

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested above because exemptions under sections s.29(1)(a), s.29(1)(b), s.29(1)(c) and s.38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption(s) applies are explained in the Annex to this letter.

ANNEX: REASONS FOR NOT PROVIDING INFORMATION

An exemption applies.

An exemption under section 38(1)(b) of FOISA applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. 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 under section 29(1) (a) of FOISA applies to the information concerning the deliberation on the background information that supported the Ministerial Statement to Parliament on the findings of officials and our consideration of further advice we required to seek to assure us of the current position. This information is still active in terms of discussion with the other parties involved and therefore could not be subject to publication.

Exemption under 29 (1) (b) applies as Ministers had to be informed of the conclusions of officials and the advice that had been gathered. As it is considered to still be a live topic with sensitive discussion with the parties involved it would not be appropriate to release information of a sensitive nature for the businesses involved.

Section 29 (1) (c) applies as the advice of legal advisors is exempt under legal privilege.

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