Two years of failings as ministers mishandled request for information on independent Scotland's ability to rejoin EU

Ministers have been subject to scathing criticism after they failed to adequately respond to questions around how an independent Scotland would re-join the European Union for two years.

The Scottish Government was criticised for a “deeply concerning” approach to a Freedom of Information request from a member of the public in a ruling from the Scottish Information Commissioner, Daren Fitzhenry.

It was also criticised for failing to disclose “factual information” in relation to the request, wrongly claiming it was “outwith scope”.

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Scotland’s membership of the EU was a key battleground of the 2014 independence referendum and the Brexit vote in 2016 has been used by Nicola Sturgeon as a justification for a potential second vote.

European Union Commission President Jean-Claude Juncker (L) poses with Scotland's First Minister and Leader of the Scottish National Party Nicola Sturgeon before their meeting at the European Union Commission headquarter in Brussels, June 29, 2016. Picture: THIERRY CHARLIER/AFP/Getty Images

The independence movement has also split on the issue with Alba, the new party of former SNP leader, Alex Salmond, backing membership of EFTA post-independence at May’s Holyrood election.

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Ministers had been asked to provide correspondence on the topic of Scotland’s eligibility for EU membership from 2012 to the date of the request in August 2019.

The request included emails and letters, between ministers, special advisers and government officials on that topic and analysis in relation to the Copenhagen criteria; a set of factors taken into account by the EU when assessing whether a nation state is eligible to join.

However, after a two-year transparency battle in which ministers were forced to row back on claims they could keep factual information relating to the request secret, the Scottish Government admitted it had failed to respond appropriately to the request.

Among the failings admitted by the government during the investigation include failing to take a “sufficiently broad interpretation of analysis” that excluded “careful consideration of Scotland’s eligibility for EU membership”.

They also admitted wrongly restricting their searches to between June 2016 and August 2019 after failing to abide by the required timeframe of the request.

Despite these failings, officials were able to rely on a cost exemption – whereby releasing the information would cost more than £600 to the public body – when responding to the appeal to the commissioner.

This means the information will remain secret and a new Freedom of Information request will be required, potentially delaying any disclosure by months.

In a rare intervention, the Scottish Information Commissioner dedicated five paragraphs criticising the ministers’ handling of the case.

Mr Fitzhenry wrote that ministers “chose to disregard” or “simply failed to take proper note” of the timeframe of the request, and only admitted fault around failing to disclose information within scope of the request after intervention by the commissioner.

He said: “It is deeply concerning that, despite initial doubts over the interpretation of this request, as highlighted in decision 027/2020, the ministers continued to take an overly restrictive interpretation.

"As a result, two substantive decisions have been issued on the same request, but unfortunately resulting in very little information disclosed to the applicant almost two years after the submission of the original request.”

In the earlier decision relating to the same case, the commissioner stated ministers had taken a “unreasonably narrow interpretation of the word”, adding that, in regards to a withheld document “the commissioner cannot see how this can be interpreted as anything other than analysis”.

A Scottish Government spokesperson said: “The Scottish Government handles all requests in line with the Freedom of Information (Scotland) Act.

"Individuals have the right to appeal where they consider we have not complied and the Commissioner will reach a decision. We carefully consider all points raised in such a decision to enable us to improve our FOI handling.”

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