Minimum Pricing and UK Internal Market Act 2020: FOI release

Information requested

1. Please publish the terms of legal advice provided to the Scottish Government as to whether it is required to seek an exemption from the 2020 Act (a) in general terms, and (b) prior to the Scottish Parliament voting for the Order which is to be laid on 19 Feb 2024.

2. Has the Scottish Government already sought an exemption and if so, on what date was the request made?

3. Has the UK Government / Secretary of State for Scotland agreed/denied any exemption, and if so, when and on what basis?

4. Please publish any and all correspondence between the Scottish Government and the UK Government in relation to seeking an exemption to the 2020 Act for the increase to minimum pricing to 65p.

5. Please confirm if the Scottish Government has sought legal advice to satisfy itself that the rise does not offend the non-discrimination principle of the 2020 Act.

6. Please provide copies of any legal advice provided on whether the increase is at odds with the non-discrimination principle.

7. Please provide copies of any correspondence between the Scottish Government and UKGovernment/Secretary of State for Scotland on the issue of the non-discrimination principle. 

Response

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. The reasons why we don't have the information are explained below. 

The Scottish Government does not consider an exemption from the UK Internal Market Act 2020 necessary. As such, the Scottish Government has not sought an exemption and so no exemption has been agreed or denied. Contact with the UK Government on this issue was, therefore, not made. With regard to question 7, I can also confirm that contact was not made with UK Government on the requested information.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not hold the information you have requested in question 3, 4 and 7.

With regard to question 5 of your request, I can confirm the Scottish Government did seek legal advice on the non-discrimination principle of the UK Internal Market Act 2020.

With regard to question 1 and 6, while our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section 36(1) (claim to confidentiality of communications) of FOISA applies to that information 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 because of the need for open and transparent government and the contentious nature, and interest in, the policy topic concerned. 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.

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.