Windfall tax on energy companies: EIR release

Information requested

1) Since May 2021, please list all the times the idea of a windfall tax on energy company profits was discussed by the Scottish Government's Cabinet and provide the minutes of these cabinet meetings as well as all actions that were agreed to relating to such a windfall tax at these cabinet meetings. Can the attendees of these cabinet meetings also be provided.

2) Any proposals developed by the Scottish Government for a windfall tax on energy company profits. Please provide any policy documents developed by the Scottish Government which outlined proposals for how it would calculate and levy such a tax since May 2021 and also state whether Scottish Ministers either authorised such work to take place or if they had sight of such proposals at any point (and if so please state which minister in either case).

Response

As the information you have requested is 'environmental information' for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

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, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

Response to your request

I enclose a copy of some of the information you requested.

Below we have provided a response to each part of your request in turn and have outlined details of any exemptions applied to the information requested and/or materials related to the request.

1) Since May 2021, please list all the times the idea of a windfall tax on energy company profits was discussed by the Scottish Government's Cabinet and provide the minutes of these cabinet meetings as well as all actions that were agreed to relating to such a windfall tax at these cabinet meetings. Can the attendees of these cabinet meetings also be provided.

Cabinet minutes provide a full account of decisions made but are not a verbatim record. As such it is not possible to determine with certainty the precise number of times a particular topic has been discussed at Cabinet nor when a topic was first raised at Cabinet within a particular timeframe. This is a formal notice under section 17(1) that the Scottish Government does not hold the information you have requested.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information under this part of your request because an exemption under section 30(b)(ii) (the free and frank exchange of views for the purposes of deliberation) applies to it. The reasons for applying this exemption are set out below. Paragraph 2.1 of the Scottish Ministerial Code provides that "the privacy of opinions expressed and advice offered within the Government should be maintained" at all times. Cabinet papers/agendas/minutes are essential elements which support and assist collective discussion in the private space which Ministers need to reach agreed positions.

The weekly meeting of the Scottish Cabinet is the highest decision-making forum within the Scottish Government, and it follows that all information considered by Cabinet must be handled with great care. Properly functioning Cabinet processes are generally recognised to be of vital public interest: Cabinet government is based on the principle of collective responsibility, which the Scottish Ministerial Code defines in the following terms:

"The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Government should be maintained. … The internal processes through which a Government decision has been made should not normally be disclosed." (Scottish Ministerial Code, 2018 edition, paragraphs 2.1 and 2.4)

Cabinet papers are invariably produced on the assumption that they will not be disclosed until a significant amount of time has elapsed (15 years).

Section 30(b)(ii) (the free and frank exchange of views for the purposes of deliberation) recognises the need to allow Ministers some private space for discussion. 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 the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can reach a final decision. This private thinking space also allows for 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, which in turn will undermine the quality of the policy-/decisionmaking process.

2) Any proposals developed by the Scottish Government for a windfall tax on energy company profits.  Please provide any policy documents developed by the Scottish Government which outlined proposals  for how it would calculate and levy such a tax since May 2021 and also state whether Scottish  Ministers either authorised such work to take place or if they had sight of such proposals at any  point (and if so please state which minister in either case)."

An exception under regulation 11(2) of the EIRs (personal information) 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 exception 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 exception.

An exception under regulation 10(4)(e) applies to some of the information requested because it  relates to internal communications. This exception is subject to the 'public interest test' and,  taking into account 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 favour lies in favour of upholding the exception.

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.

FOI 202400399874 - Information Released - NDR document

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