Hunting with Dogs (Scotland) Act 2023: EIR Review

Information requested

Original request 202300381672

1. All correspondence, sent and received, between the Scottish Government and representatives of HM the Queen and/or HM the King, including the monarch's legal representatives, regarding the Hunting with Dogs (Scotland) Act 2023 and the application of crown consent to that bill in line with rule 9.11 of standing orders for the Scottish parliament;

2. All correspondence, sent and received, between the Scottish Government and representatives of HM the Queen and/or HM the King, including the monarch's legal representatives, regarding any changes sought by the representatives of either the Queen or the King to any parts of that bill;

3. Minutes of Scottish Government meetings regarding obtaining crown consent to that bill, as above;

4. Internal emails involving Scottish Government officials and Ministers regarding seeking and obtaining crown consent to that bill; and

5. Briefings, memos or other documents written for Scottish Ministers regarding (wholly or in part) the application of crown consent to this bill, including but not exclusively, Ministerial responses on the topic of crown consent for use during parliamentary evidence sessions, parliamentary debates or for parliamentary questions.

Response

I have now completed my review. I have reviewed our original response, the information held by the Scottish Government that is within scope of your request, the information that was released and the information that was withheld. I have reviewed the exceptions that were applied to some of that information. I have also reconsidered the ‘public interest test’ in each case.

In your original request for information dated 19 October 2023 you asked for:

1. All correspondence, sent and received, between the Scottish Government and representatives of HM the Queen and/or HM the King, including the monarch's legal representatives, regarding the Hunting with Dogs (Scotland) Act 2023 and the application of crown consent to that bill in line with rule 9.11 of standing orders for the Scottish parliament;

2. All correspondence, sent and received, between the Scottish Government and representatives of HM the Queen and/or HM the King, including the monarch's legal representatives, regarding any changes sought by the representatives of either the Queen or the King to any parts of that bill;

3. Minutes of Scottish Government meetings regarding obtaining crown consent to that bill, as above;

4. Internal emails involving Scottish Government officials and Ministers regarding seeking and obtaining crown consent to that bill; and

5. Briefings, memos or other documents written for Scottish Ministers regarding (wholly or in part) the application of crown consent to this bill, including but not exclusively, Ministerial responses on the topic of crown consent for use during parliamentary evidence sessions, parliamentary debates or for parliamentary questions.

In your email of 27 December 2023 you asked for:

1. A review of all the document redactions that were made under the terms of the exceptions at regulation 10(4)(e) (internal communications) and 10(5)(d) (confidentiality of proceedings) of the EIRs;

2. A review of all redactions made in the letter dated 22 December 2022 from the First Minister’s private office to Sir Clive Alderton at Buckingham Palace;

3. An explanation of our consideration that an obligation of confidence at common law exists in respect of correspondence between the Scottish Government and Her/His Majesty, including Her/His representatives, in relation to Crown consent;

4. An explanation why part 5 of your original request does not appear to have been answered and the release of all relevant documentation; and

5. A fresh assessment of the balance of public interest and a re-examination of the justification for withholding some of the information sought in your original request.

I have concluded that the original decision should be confirmed, with modifications. Taking each part of your original request for information in turn, I have explained below the reasons for my conclusions.

1) Request for all correspondence, sent and received, between the Scottish government and representatives of HM the Queen and/or HM the King, including the monarch's legal representatives, regarding the Hunting with Dogs (Scotland) Act 2023 and the application of crown consent to that bill in line with rule 9.11 of standing orders for the Scottish parliament;

2) Request for all correspondence, sent and received, between the Scottish government and representatives of HM the Queen and/or HM the King, including the monarch's legal representatives, regarding any changes sought by the representatives of either the Queen or the King to any parts of that bill;

I have concluded that a small amount of information withheld from the letter dated 22 December 2022 to Sir Clive Alderton, Private Secretary to His Majesty the King from Chris Mackie, Principal Private Secretary to the First Minister under the exception at 10(5)(d) of the EIRs (confidentiality of proceedings) should be released. This conclusion also applies to the identical draft letter that was prepared for Sir Edward Young (this was superseded by the letter that was issued to Sir Clive Alderton).

In reaching my conclusion I have considered whether the public interest in disclosing the information outweighs the public interest in applying this exception. I have acknowledged that there is public interest in disclosing this information as part of open, transparent and accountable government, and to inform public debate. I have also concluded that disclosure would facilitate further understanding of the mechanism by which Crown consent is obtained in relation to Scottish Parliament bills.

A copy of this information is enclosed.

However, I am satisfied that the exception should be upheld in relation to the remainder of this information.

This exception applies to information which records direct communications between the Scottish Government and the King, the Royal Family or the Royal Household and information relating to those communications.

This exception applies because disclosure of this information would harm the confidentiality of the proceedings of a Scottish public authority where such confidentiality is provided by law. ‘Proceedings’ is not defined in the EIRs but can include regulatory and administrative processes and other activities carried out according to a statute. In this case, ‘proceedings’ refers to the administrative processes whereby the Scottish Ministers seek Crown consent in order to satisfy the requirements of Rule 9.11 of the Standing Orders of the Scottish Parliament.

The confidentiality of these proceedings is protected by the common law of confidence.

This exception is subject to the ‘public interest test’. Taking account of all the circumstances of this case, I have considered whether the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception. I recognise that there is some public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. Disclosure would also facilitate further understanding of the mechanism by which Crown consent is obtained in relation to Scottish Parliament bills.

However, I consider that this is outweighed by the public interest in maintaining good relations between the Scottish Government and the Royal Household, in protecting the free and frank exchange of information, and in protecting a channel of communication between the Scottish Government and the Royal Household. It is important that there is the ability to have full and frank discussions on behalf of the Head of State and the Scottish Government about the issues that relate to Crown consent including how the legislation applies to the Crown to enable this constitutional process to work in an effective way.

Disclosing the content of such communications is likely to mean that future communications will be less open and less frequent, with less exchange of information, which could negatively affect the process of obtaining Crown consent in future. There can be no public interest in the disclosure of information which will damage that relationship and disrupt future communications. Additionally, there is a strong public interest in maintaining the longstanding constitutional convention that correspondence between the Sovereign and His Government is confidential in nature. This convention is an adjunct of the right of the Sovereign to be consulted by His Government, and to advise, encourage and to warn as the circumstances require. If the content of these consultations became known, it might serve to undermine the appearance of the political neutralityof the Sovereign, and so the rights of the Sovereign could not be exercised effectively without this expectation of confidentiality.

The public interest has also been served by the information that has been provided to the Scottish Parliament about the matters in the bill that required Crown consent and publicly available information about how legislation applies to the Crown which can be debated and scrutinised by Parliament.

Under the terms of regulation 6(1)(b) of EIRs, information that is publicly available and easily accessible in another form does not have to be provided. This exception applies to some of the information that was attached to the letter of 22 December 2022 to Sir Clive Alderton from Chris Mackie. The links to this information are available here:

• Hunting with Dogs (Scotland) Bill as amended at stage 2: Hunting with Dogs (Scotland) Bill (parliament.scot) Hunting with Dogs (Scotland) Bill Explanatory Notes: Explanatory Notes (parliament.scot)
• Hunting with Dogs (Scotland) Bill Policy Memorandum: Policy memorandum (parliament.scot)

3) Request for Minutes of Scottish government meetings regarding obtaining crown consent to that bill, as above;

I can confirm that no relevant information is held by the Scottish Government. Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have.

This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information about crown consent and the process by which it is obtained, clearly we cannot provide information which we do not hold.

4. Request for internal emails involving Scottish Government officials and Ministers regarding seeking and obtaining crown consent to that bill; and

5. Request for briefings, memos or other documents written for Scottish Ministers regarding (wholly or in part) the application of crown consent to this bill, including but not exclusively, Ministerial responses on the topic of crown consent for use during parliamentary evidence sessions, parliamentary debates or for parliamentary questions.

I have concluded that a small amount of information withheld under the exception at 10(4)(e) of the EIRs (internal communications) should be released. A copy of this information is enclosed.

However, I am satisfied that the exception should be upheld in relation to the remainder of this information. It is internal communication between Scottish Government officials and Ministers about the development of the Bill including in relation to Crown consent.

This exception is subject to the ‘public interest test’. Taking account of all the circumstances of this case, I have considered whether the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception.

I recognise that there is some public interest in release as part of open, transparent and accountable government, and to inform public debate. However, there is greater public interest in high quality policy and decision making, and in the properly considered development and implementation of policies and decisions. This means that Scottish Ministers and Scottish Government officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Disclosing such discussions may undermine or constrain the Government’s view on policies whilst they are still under discussion and development.

Some of the information that you have requested is internal legal advice and disclosure would breach legal professional privilege. Therefore, I am satisfied that the exception at 10(4)(e) applies to this information.

This exception is subject to the ‘public interest test’. I have considered whether the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception. I recognise that there is some public interest in release as part of open, transparent and accountable 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 Scottish Ministers and Scottish Government officials are able to receive legal advice in confidence.

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.

EIR 202400392273 - Information released - Annex

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