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Publication - FOI / EIR Release

Back to Work Allowance: FOI release

Published: 5 Feb 2018

Information request and response under the Freedom of Information (Scotland) Act 2002.

FOI reference: FOI/18/00020
Date received: 5 January 2018
Date responded: 1 February 2018

Information requested

Can I see all correspondence and analysis relating to the Scottish Government's conclusion that it did not have the necessary vires to legislate for the Grant in its current form.

Response

I enclose a copy of some of the information you requested dated 30 March 2016 in Annex A.

While our aim is to provide information whenever possible, in this instance we are unable to provide most of the information you have requested because exemptions under sections Section 28(1)–relations with the UK, Section29(1)(a)–formulation or development of government policy, Section 30(b)(i)–free and frank provision of advice, Section 30(b)(ii)–free and frank exchange of views for the purpose of deliberation, Section 29(1)(c)–Law Officer's advice and Section 36(1)–legal advice of FOISA applies to that information. The reasons why the exemptions apply are explained below.

Reasons for not providing information

An exemption applies, subject to the public interest test:

An exemption under Section 28 (1)–relations within the UK (in relations to communications between the Scottish Government and another UK administration) of FOISA applies to some of the information you have requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government as it would reveal candid internal discussions and would prematurely reveal negotiating positions. It is essential for the effective administration of the UK as a whole that there should be regular, often private, communications between the Scottish Government and the UK Government. Disclosure of this information will mean that the UK Government are likely to be more reluctant to communicate as frequently and openly with the Scottish Government in future.

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 because of the statement made by the Minister for Social Security at the Joint Ministerial Working Group on Welfare meeting on 14 September 2017. However, this is outweighed by the public interest in ensuring that ongoing discussions with the UK Government are not comprised, and officials are able to continue private, regular communications.

Exemptions under Section 29 (1)(a)–formulation or development of government policy, Section 30 (b)(i)–free and frank provision of advice and Section 30 (b)(ii)–free and frank exchange of views for the purpose of deliberation of FOISA applies to some of the information you have requested.

The above exemptions apply because disclosure would, or would likely to, inhibit substantially the free and frank provision of advice. It recognises the need for officials to have a private space within which to provide free and frank advice to Ministers and other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on the vires to legislate for Job Grant will substantially inhibit the provision of such advice in future, particularly because these discussions are still ongoing and decisions have not been taken.

The exemptions above are also 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 exemptions. However, there is a greater public interest in allowing Ministers and officials a private space within which to explore and refine the Government's policy position on the best legislative route to provide for Job Grant. This private thinking space is essential to enable all options to be properly considered, so that good policy decisions can be made. 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.

An exemption under Section 29(1) (c)–Law Officer's Advice applies to some of the information you have requested because it relates to the provision of advice by the Law Officers.

The exemption above is also 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 Law Officer Convention (reflected in the Scottish Ministerial Code), which requires the advice provided by the Law Officers should not be divulged except in exceptional circumstances and with the prior consent of the Law Officers. Parliament has also given particular statutory protection to the content of Law Officer advice or requests for their advice to ensure that the government is able to obtain frank and full legal advice in confidence from them (see for example the HM Treasury and the information commissioner case, 21 July 2009).

An exemption under Section 36 (1)–Legal Advice applies to some of the information you have 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 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 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. (The release of the content of such legal advice is likely to be appropriate only in highly compelling cases. This has been recognised by both the Scottish Information Commissioner and the courts – see for example, the House of Lords case, Three Rivers District Council and others v Governor and Company of the Bank of England (2004) UKHL48)

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-18-00020-Annex A.pdf

1 page PDF
42.5kB

Contact

Please quote the FOI reference

Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

Published:
5 Feb 2018
Back to Work Allowance: FOI release