Correspondences around the Court of Session defeat for Gender Reforms: FOI release

Information requested

Any correspondence between special advisers, senior civil servants within either the constitution or legal directorate, and ministers within the Scottish Government and SNP party officials around the court of session defeat for gender reforms. This should cover between September 1 2023 and December 31 2023.

Response

Our understanding is the information you are seeking relates to the judicial review by the Scottish Ministers of the Order made by the Secretary of State under section 35 of the Scotland Act 1998 which prohibited the Gender Recognition Reform (Scotland) Bill from being submitted for Royal Assent.

In particular, you are seeking correspondence (including emails, written submissions to Ministers and minutes etc) between 1 September 2023 and 31 December 2023 by:

• Special Advisers or members of the Senior Civil Service in either the Scottish Government’s Constitution Directorate or the Scottish Government’s Legal Directorate to Ministers or SNP party officials; and Ministers or SNP party officials to Special
• Advisers or members of the Senior Civil Service in either the Scottish Government’s Constitution Directorate or the Scottish Government’s Legal Directorate.

By way of background, I should explain that:

• A list of Scottish Government directorates is available at https://www.gov.scot/about/howgovernment-is-run/directorates/
• The policy lead at official level on the Gender Recognition Reform (Scotland) Bill was held by the Justice Directorate.
• The civil service in the Scottish Government consists of a number of grades. Members of the Senior Civil Service are Deputy Directors; Directors; Directors-General; and the Permanent Secretary. Information about the civil service is at https://www.gov.scot/about/how-governmentis-run/civil-service/

When a civil servant puts a written submission to a Minister, it is usual practice to copy in other Ministers with an interest; special advisers; and other civil servants. We have treated your request as relating to correspondence addressed to Ministers or SNP party officials from members of the Senior Civil Service in either the Scottish Government’s Constitution Directorate or the Scottish Government’s Legal Directorate and vice versa, and not just where they may have been copied in.

Response to your request

I enclose a copy of some of the information you requested.

Some of the information you have requested is available from:

• Meeting of the Parliament: 20/12/2023 | Scottish Parliament Website (statement to Parliament on the judicial review).
• Section 35 Order Judicial Review: Scottish Government response - gov.scot (www.gov.scot)
• https://www.supremecourt.uk/cases/uksc-2016-0062.html (The judgment by the UK Supreme Court in another case).

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

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 30(b)(i) (free and frank provision of advice); section 36(1) (confidentiality); and section 38(1)(b) (personal information) of FOISA apply to that information.

Exemptions

An exemption under section 30(b)(i) (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. Disclosing the content of free and frank advice on gender recognition will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive and controversial issue.

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 policy position on gender recognition This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken.

In some instances, material in this area has been included in the statement to Parliament. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. Links to the statement to Parliament are provided above.

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 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data 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 http://www.gov.scot/foi-responses.

FOI 202400407156 - Information Released - Annex

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