Royal Household handling of requests: FOI release

Information requested

Accordingly, please provide any information held by the Scottish Government in relation to the following matters:

1. How any request by the Royal Household for information in relation to a Bill for which consent is sought, or any objection to the Bill’s content, are to be handled, including any general policies or practices in relation to the handling of such requests/objections.
2. Whether, in relation to a request for Crown Consent, the Royal Household, or any person acting for it or on its behalf including the Queen’s Solicitor in Scotland, has ever (i) objected to the content of a Bill for which consent is sought; and/or (ii) withheld consent to a proposed Bill for the purpose of securing amendments to the proposed Bill; and/or (iii) otherwise sought to amend or alter the content of a Bill for which consent has been sought.
3. The circumstances in which the Scottish Government will hold “policy discussions” with the Crown or its representatives, and any policies and procedures governing such discussions (in particular, the purpose of those discussions and the sorts of matters that those discussions will typically address) ; and
4. Given that the Heat Networks FOIA Request indicates that amendments have previously been made to Bills in response to concerns raised by the Crown (or their representatives), the policies and practices governing the circumstances in which amendments will be made to a Bill in response to such concerns.

In these circumstances, we invite you to confirm for the avoidance of doubt that the Scottish Government understands that:

1. In relation to Bills before the Westminster Parliament:

a. The requirement to obtain Crown Consent to a proposed Bill is intended to be a purely formal requirement;

b. The requirement to obtain Crown Consent is not intended to enable representatives of the Crown to lobby the Government for, or request, substantive changes to proposed Bills and consent may not be withheld for this purpose; and

c. Accordingly, the Government should not therefore make amendments to proposed Bills, after Crown Consent has been sought but not yet obtained, for the purpose of securing Crown Consent.

2. In relation to Bills before the Scottish Parliament, the requirement to obtain Crown Consent should be understood and applied in the same way, reflecting, in particular, 1(a), (b), and (c) above.

Response

Scottish Government response

It may be helpful to make clear that the Bill handbook covers the main points of process and is the primary source of internal guidance for Scottish Government officials involved in taking forward primary legislation but it does not, and cannot, cover every possible circumstance or potential question.

It may also be helpful to make clear that Crown application and Crown consent, although related, are distinct matters. How an Act applies to the Crown is not determinative of whether Crown consent is needed.

Crown consent is a narrower concept than the question of how an Act should apply to the Crown. Crown consent is required where a Bill affects the Crown in certain defined ways. However, a Bill may apply to the Crown in a particular way but not require Crown consent because those aspects of the Bill do not affect the Crown in the way that is required to trigger Crown consent.

Erskine May, the guide to procedure in the UK Parliament provides more detail on whether Crown consent is required for a Bill.

As the Bill handbook sets out Crown consent is a procedural requirement arising under the Scotland Act. The Parliamentary authorities are the ultimate arbiters of whether consent is needed. The Bill handbook sets out the process that should be followed to obtain Crown consent if it is agreed that a Bill requires Crown consent.

How a Bill applies to the Crown is a question of policy and achieving the correct legal effect against the background of the Government’s overall policy that the Crown should be subject to the same regulatory requirements as anyone else. Crown application is covered separately in the Bill handbook.

Response to your request for information

While our aim is to provide information whenever possible, in this instance, in relation to points 1, 3 and 4, the Scottish Government does not have the information you have requested.

This is because the Scottish Government does not have set policies or procedures for dealing with its stakeholders. Engagement, and the form of that engagement, with relevant stakeholders on the detail of specific provisions would be considered on a case by case basis.

The Scottish Government prepares legislation based on numerous factors, including consultation with relevant stakeholders. Scottish Government and Ministers have a right to robustly defend the Government’s policies and decisions on its final policy. While the Scottish Government welcomes full debate on Bills brought forward to Parliament, Bills introduced do not indicate how they have changed as they have been developed. Neither does the Scottish Government record how Bills have changed as they have been developed, whether in relation to stakeholder queries or otherwise.

There is also no definitive or indicative list of when discussions with policy representatives of the Crown may be required in relation to Crown consent. The Bill team always needs to consider whether Crown consent is required and to set out their views on this to assist the Parliamentary authorities in reaching a decision. There might need to be engagement with the Palace or the King’s Solicitor at an early stage if further factual information is needed to assess whether Crown consent is needed, or to ensure that arrangements are in place to obtain Crown consent within relevant timescales if a Bill is subject to emergency or expedited procedure. The Bill handbook makes clear that 14 days should be given to obtain Crown consent. Bill teams may choose to engage earlier with representatives of the palace to ensure there is early awareness of the need for Crown consent for particular Bills and to reach agreement about the impact on the Crown in terms of the rules for Crown consent.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested in relation to points 1, 3 and 4 of your request for information.

Separate to this, as the response to the FOI that you have highlighted in request 2 indicates, there may be policy discussions with representatives of the Crown. This would relate to the question of how particular legislation should apply to the Crown (Crown application) rather than the Crown consent process. This would also be against the backdrop of the Scottish Government’s overall policy position on how an Act should apply to the Crown. In this context there might therefore be discussions about any particular modifications that should be made to legislation in relation to its application to the Crown (see below and the reference to ‘Drafting Matters!: guidance’).

Government policy is that the Crown should in general be subject to regulatory requirements and enforcement arrangements on the same basis as others, except where there is a legitimate reason for exemption, for example on grounds of national security.

Section 20 of the Interpretation and Legislative Reform (Scotland) Act 2010 (“ILRA”) provided a new default provision for Scottish legislation whereby the Crown is bound by the terms of an Act of the Scottish Parliament or SSI, unless the provision expressly exempts it. This section also abolished the common law rule that the Crown could be bound by the terms of an Act of the Scottish Parliament or SSI by necessary implication. The position as to which Westminster Acts (and instruments made under them) bind the Crown remains unaffected by the provisions in section 20.

Scottish Government guidance on drafting legislation sets out a range of matters where legislation may need to be modified to reflect the position of the Crown.

The Scottish Government is required to explain and justify the policy content of all of its legislation at introduction. All Bills passed by the Scottish Parliament have been scrutinised and debated by Parliament before being agreed. It is of course open to MSPs and Parliamentary Committees to raise questions as to whether and how provisions apply to the Crown during any Bill’s Parliamentary passage.

From September 2022, the Scottish Government includes information in a Bill’s accompanying documents setting out how legislation applies to the Crown. If a Bill does not apply to the Crown in the same way as everyone else, this will be explained in that accompanying documentation. This ensures full information is publicly available on the introduction of a Bill to enable MSPs to scrutinise and debate this throughout the passage of the Bill.

In relation to point 2 of your request for information, to consider every Bill brought forward would have breached the relevant cost limit. Therefore, in line with your request to limit searches for information to a period of time that complies with the cost limit, we have considered the Bills brought forward in the five years leading up to your request being made. I can confirm that from 2 June 2018 to 2 June 2023, Crown consent has been signified to Parliament by Cabinet Secretaries for the following Scottish Government Bills (links have been provided to the relevant Scottish Parliament website debate transcript where Crown consent was signified):

• Agriculture Retained EU Law and Data Scotland Bill
• Coronavirus (Scotland)
• Coronavirus (Scotland) (No.2) Bill
• Coronavirus (Extension and Expiry) (Scotland) Bill
• Coronavirus (Recovery and Reform)
• Cost of Living (Tenant Protection) Scotland Bill
• Fireworks and Pyrotechnic Articles (Scotland) Bill
• Hate Crime and Public Order (Scotland) Bill
• Heat Networks (Scotland) Bill
• Hunting with Dogs (Scotland) Bill
• Non-Domestic Rates (Scotland) Bill
• Non-Domestic Rates (Coronavirus) (Scotland) Bill
• UK Withdrawal from the European Union (Continuity) (Scotland) Bill [2020]

Having searched the case files of each of these, I can confirm the following:

• (i) Yes, there were, in some cases, queries raised about the content of a Bill for which consent was sought, particularly in relation to how certain provisions might apply to the Crown;
• (ii) No, there were no cases where any indication was given that consent would be withheld for the purpose of securing amendments to a proposed Bill;
• (iii) Yes, there were, in some cases, requests to better understand the application of the Bill to the Crown and some suggested amendments, or suggested areas for amendment, which the Government considered.

When considering your points 2(i) and 2(iii), there were no occasions where concerns and/or requests related to Crown consent. However, we considered this more widely and also took into account issues relating to Crown application. As we have explained above it is always for a matter for the Government to justify how a Bill applies to the Crown and for Parliament to scrutinise those decisions.

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under sections 30(b) (Prejudice to effective conduct of public affairs, 36(1) (confidentiality), and 41(a) (Communications with His Majesty etc. and honours) of FOISA applies to that information.

The reasons why those exemptions apply are explained below.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested 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 as part of open and transparent 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 Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

An exemption under section 30(b) (Prejudice to effective conduct of public affairs) to some of the information requested because it relates to deliberations between Scottish Government officials and the 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. This is because it is necessary for officials and Ministers to have the opportunity to provide each other with free and frank exchange of views in exercising their functions.

An exemption under section 41(a) (Communications with His Majesty etc. and honours) applies to some of the information requested because it is communications between the Scottish Government and the Solicitor to the King in Scotland, and therefore constitutes communications with His Majesty. 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. The background here, as you are aware, is that the Scotland Act requires that the Parliament has a process in place to ensure that where a Bill requires Crown consent then it does not pass unless Crown consent has been signified to the Parliament. This process is reflected in the Standing Orders of the Parliament. The question of Crown consent is therefore one which the Scottish Government must consider prior to a Bill being introduced and during the passage of a Bill.

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 as part of open and transparent government, and in order to inform public debate. However, our response to your request provides further information relating to the mechanism by which Crown consent is obtained in relation to Scottish Parliament Bills, and the difference between Crown consent and Crown application. We therefore 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 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 and how 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 would negatively affect the process of understanding how legislation applies to the Crown 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 neutrality of the Sovereign, and so the rights of the Sovereign could not be exercised effectively without this expectation of confidentiality.

The public interest is also served by the information that is provided to the Parliament about the matters in a Bill that require Crown consent and about how legislation applies to the Crown, which can be debated and scrutinised by Parliament.

When considering your point 2(ii), I can again confirm there were no cases where any indication was given that consent would be withheld for the purpose of securing amendments to a proposed Bill.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested in relation to point 2(ii) of your request for information.

Response to your request for confirmation

As you are aware, Rule 9.11 of the Standing Orders of the Scottish Parliament (which reflects the requirements of paragraph 7 of schedule 3 of the Scotland Act 1998) states that:

“Where a Bill contains provisions, or is amended so as to include provisions, which would, if the Bill were a Bill for an Act of the United Kingdom Parliament, require the consent of Her Majesty, the Prince and Steward of Scotland or the Duke of Cornwall, the Parliament shall not debate any question whether the Bill be passed or approved unless such consent to those provisions has been signified by a member of the Scottish Government during proceedings on the Bill at a meeting of the Parliament.”.

Therefore Westminster guidance, in terms of the Office of the Parliamentary Counsel’s guidance pamphlet and Erskine May, is relevant to determining whether Crown consent is required for Bills in the Scottish Parliament. Crown consent is a procedural matter and it operates in the same way in Scotland as it does in relation to Bills before the Westminster Parliament, subject to the different Parliamentary procedures for Bills.

In addition, since 2022 the Scottish Parliament now publishes on its website whether a Bill requires Crown consent at the point of introduction. Previously that would not have been known until the start of the Stage 3 debate although MSPs could have asked about it.

The Policy Memorandum for a Scottish Parliament Bill will also explain why Crown consent is needed.

If the position on whether Crown consent is needed changes during the passage of the Bill this will be explained to Parliament.

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.