Correspondence relating to Air Departure Tax/Air Passenger Duty: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002.
FOI reference: FOI/17/02267
Date received: 6 October 2017
Date responded: 1 November 2017
Information requested
Details of any correspondence (phone calls, emails, notes, minutes of meetings, etc) between the Scottish Government, particularly Derek Mackay, and the UK Government or Her Majesty's Treasury on Air Departure Tax/Air Passenger Duty between January 1, 2017 and October 5, 2017.
Also, details of any requested meetings with any UK Government ministers by the Scottish Government on the topic of Air Departure Tax/Air Passenger Duty.
Also, details of any Scottish Government briefs prepared on the topic of Air Departure Tax/Air Passenger Duty or EU state aid rules between August 1, 2017 and October 5, 2017.
Response
I enclose a copy of some of the information you requested. The information being provided comprises:
Briefing for Cabinet Secretary meetings with the Financial Secretary to the Treasury on 31 August;
Q&A provided for the Parliamentary statement on 5 October;
Timelines of events provided for the Parliamentary statement on 5 October.
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 exemptions under section 28(1) (substantial prejudice to relations between the Scottish Government and another UK administration), section 29(1)(a) (formulation or development of government policy) and 30(b)(i) (free and frank provision of advice) of FOISA apply to that information. The reasons why these exemptions apply are explained below.
Reasons for not providing information
An exemption applies, subject to the public interest test.
Exemptions under section 28(1) (substantial prejudice to relations between the Scottish Government and another UK administration), section 29(1)(a) (formulation or development of government policy) and 30(b)(i) (free and frank provision of advice) of FOISA apply to some of the information you have requested.
An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. The release of these communications regarding the development of the policy on Air Departure Tax will mean that the UK Government is likely to be more reluctant to share such information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations.
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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 good relations between the Scottish Government and the UK Government, and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, such as the development of the policy on Air Departure Tax. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.
An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government's policy on Air Departure Tax.
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 development of the policy on Air Departure Tax 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.
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the development of the policy on Air Departure Tax will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken.
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 a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government's position on Air Departure Tax, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.
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