House of Commons boundaries, Scotch Whisky export duty and recall petition: FOI release

Information requested

Q1. Could you supply all correspondence sent and received by the Scottish Government, including internal correspondence, all briefings and notes/minutes from meetings, about the Boundary Commission's 2023 review of House of Commons boundaries, between September 1 2023 and the date of this FOI [2 April 2024]?

Q2. Could you supply all correspondence sent and received by the Scottish Government, including internal correspondence, all briefings and notes/minutes from meetings, about Michael Matheson's resignation, between February 1 2024 and the date of this FOI [2 April 2024]?

Q3. Could you supply all analysis undertaken for or by the Scottish Government, correspondence sent and received by the Scottish Government, including internally, briefings prepared, notes/minutes from meetings about Scotch Whisky export duty to Westminster?
-Does this exist in Scotland?

Q4. Could you supply all correspondence sent and received by the Scottish Government, including internal correspondence, all briefings and notes/minutes from meetings, about a recall petition being brought in at the Scottish Parliament, as covered here:
https://www.scottishdailyexpress.co.uk/news/politics/alister-jack-offers-help-humza-32410543 between January 1 2024 and the date of this FOI [2 April 2024]?

Response

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

Question 1

In relation to your first question, I clarified on 5 April that the Scottish Government has no formal role in relation to House of Commons constituency boundaries. It does however receive regular updates from the UK Government on the various aspects of its Electoral Integrity Programme and from the Electoral Commission on development of its guidance. I explained that we do therefore hold some incidental references to the review of House of Commons boundaries in material shared with the Scottish Government by the UK Government and the Electoral Commission (for example, describing when the new legislation would take effect). As a result, and in line with my reply of 5 April, we have restricted
your first question to material prepared by Scottish Government officials and excluded general updates received from other organisations.

I attach as a separate document ( named “Annex A - Q1 – material to be released”) the information considered releasable in relation to the first part of your request. We are unable to provide some of the information you have requested because the exemption under section 38(1)(b) of FOISA – personal data of a third party, applies to some of the information covered. A further description of this exemption is set out below.

Question 2

In relation to this question colleagues have confirmed that no additional information is held by the Scottish Government that was not covered by your separate request of 14 March 2024 (our reference 202400404652) for “All correspondence received and sent by the Scottish Government, including internal correspondence, briefings and notes, about Michael Matheson's resignation, and whether he will take his severance payment, between February 5 2024 and March 5 2024” answered on 10th April 2024. The answer to your second question in FOISA terms is therefore a mixture of information not held (in relation to the wider timeframe (February 1 to 2 April) in terms of section 17 of FOISA and a repeat request in terms of section 14 of FOISA.

Question 3

In relation to your third question, I asked on 8 April if you were looking to understand whether alcohol duty is applied to exports of Scotch Whisky. I can confirm that there is no export duty on Scotch Whisky, this is set out in the Government Expenditure & Revenue Scotland 2022-23 document (this is considered material otherwise accessible in terms of section 25 of FOISA. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy).

I also queried on 8 April if you had a particular date range in mind for your request and gave the example of material created since the Scottish Parliament election on 6 May 2021 to the date of your request [2 April 2024]. In the absence of a response on that point we have applied that date range in processing your third question.

I attach as a separate document (named “Annex B - Q3 – material to be released”) the information considered releasable in relation to the third part of your request. We are unable to provide some of the information you have requested because the exemption under section 38(1)(b) of FOISA – personal data of a third party, applies to some of the information covered (marked as ‘[redacted]’ in the material). A further description of this exemption is set out below.

Question 4

In relation to your fourth question, I am able to provide the following documents:

• Annex C – Q4 - letter from the Secretary of State for Scotland to the First Minister dated 21 March 2024
• Annex D – Q4 - letter from the Minister for Parliamentary Business to the Secretary of State for Scotland dated 27 March 2024
• Annex E – Q4 – material to be released. This contains links to material otherwise accessible in terms of section 25 of FOISA. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the websites listed, then please contact me again and I will send you a paper copy.

We consider that a number of exemptions apply to the remainder of the material held. 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 FOISA exemptions under section 29(1)(a) – Information related to the formulation or development of Scottish Government policy, section 29(1)(b) – Ministerial Communications, section 30(b)(i) – Free and frank provision of advice, section 30(b)(ii) – free and frank exchange of views and section 38(1)(b) – personal data of a third party of FOISA, apply to some of the information covered by your fourth question. The reasons why these exemptions apply are explained below.

Section 29(1)(a) – Information related to the formulation or development of Scottish Government policy

An exemption under section 29(1)(a) of FOISA applies to some of the information you have requested in your fourth question. This is where material relates to the formulation and development of Government policy on recall of MSPs. 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 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 discussions on the election 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.

Section 29(1)(b) – Ministerial Communications

An exemption under section 29(1)(b) of FOISA applies to some of the information you have requested in your fourth question. communication between Ministers. This exemption is subject to the ‘public interest test’. We recognise that there is some public interest in release because in general it is in the public interest for the Scottish Government to be open and transparent. However this is outweighed by the public interest in maintaining a confidential space for ministers to openly and freely discuss policy options between themselves. 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.

Section 30(b)(i) – Free and frank provision of advice

An exemption(s) under section 30(b)(i) – Free and frank provision of advice of FOISA applies to some of the information you have requested under your fourth question. Information is exempt under section 30(b)(i) if disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.

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, however this is outweighed by the public interest in preventing the inhibition of the free and frank provision of advice.

Section 30(b)(ii) – free and frank exchange of views

An exemption(s) under section 30(b)(ii) – Free and frank provision of views of FOISA applies to some of the information you have requested under your fourth question. Information is exempt under section 30(b)(ii) if disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation.

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, however this is outweighed by the public interest in preventing the inhibition of the free and frank exchange of views for the purposes of deliberation.

Section 38(1)(b) – personal data of a third party

An exemption under section 38(1)(b) of FOISA applies to some of the information requested under your first third and fourth questions because it is personal data of individuals included within the correspondence and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation. 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. Redactions have been made where that is the case.

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 202400407175 - Information released - Annex A - E

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