Abolition of the two child cap in Scotland: Discussion and Analysis: FOI Review

Information requested

Original request:

You asked for any discussion and analysis of the ability of the Scottish Government to abolish, mitigate or end the child cap in Scotland.

Response

We have now completed the review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for “any discussion and analysis of the ability of the Scottish Government to abolish, mitigate or end the child cap in Scotland.”

We have concluded that the original decision should be confirmed with modifications.

In conducting the review, we have considered the exemptions applied and where appropriate have also considered the application of the public interest test. We have determined that exemptions under section 29(1)(a) (policy development), section 29(1)(b) (Ministerial communications) and section 38(1) (b) (personal information) continue to apply to some of the information you have requested. We have however in reviewing the information withheld under section 29(1)(a) found that some of the information should be released. As such we have included a copy of some of the information you have requested.

In requesting your review, you have referenced a previous request which asked for “any discussion or analysis conducted by the Scottish Government on its ability to use Section 24 powers to increase Universal Credit and Child Tax Credit to children effected by the cap" and noted that in response we confirmed that the Scottish Government does not have the powers to change the two-child limit policy at source while Universal Credit and Child Tax Credits remain reserved to Westminster.

It may be helpful to explain that this position has not changed. The draft 2025-26 budget announced a commitment to spend £3 million to develop the systems to deliver the mitigation of the two-child cap, which will lift 15,000 children out of poverty.

The Scottish Government has explored approaches to mitigations to the two child cap using devolved powers. This will take the form of a new devolved benefit to mitigate the two child cap and does not extend to the abolishment of the cap itself, as previously noted the power to remove the cap is reserved for the United Kingdom Government and not the Scottish Government.

We note in your request for a review you also mention the applications of an exemption which has not previously been applied and the view that this is not consistent. The applications of exemptions when responding to any Freedom of Information request is looked at on a case by case basis taking account the circumstances at the time a request is received. When responding to previous Freedom of Information requests the Scottish Government was not actively exploring potential mitigations and as such this exemption was not relevant to your previous Freedom of Information requests prior to this one.

As mentioned above exemptions under section 29(1)(a) (policy development), section 29(1)(b) (ministerial communications) and section 38(1)(b) continue to apply to some of the information you have requested. We acknowledge that our response to you on 24 December 2024 could have been more helpful in explaining why these exemptions apply. We have therefore set out some further reasoning below which we hope you will find helpful.

Section 29(1)(a) – Formulation or Development of Government Policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because the information provides Ministers with a range of options to consider relating to the development of the Scottish Government’s policy on mitigations for the 2 child cap.

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 mitigations of the 2 child benefit cap 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 (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers.

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 allowing Ministers a private space within which policy positions can be explored and refined, until the Government as a whole can adopt a policy that is sound and likely to be effective. 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 making process.

Section 38(1)(b) – Personal Data of third parties

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, eg names/contact details of individuals, 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.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202400446349 - Information Released - Annex

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