Gender Recognition Reform: FOI release

Information requested

1. Could you supply all correspondence sent and received by the Scottish Government, including internally, minutes/notes from meetings and all briefings about the Gender Reform Recognition Act court defeat, between January 15 and April 15 2024?

2. Could you supply the full up-to-date costs of the court battle for the act mentioned above, with a breakdown of costs?

3. Could you supply the legal advice received before fighting the court case mentioned above and the spend on this?

4. Could you supply all prepared media lines for the court case before the result was announced?

5. Could you supply all correspondence shared between the Scottish Government and the Equality Network in the last six months?

6. Could you supply all correspondence and documentation surrounding Shirley-Anne Somerville's parliament statement on December 20 about gender reforms, between December 15 2023 and January 15 2024?

7. Could you supply all correspondence shared between the Scottish Government and Alister Jack in the last six months?

Response

I enclose a copy of some of the information you requested. As outlined below, a number of exemptions apply to some of the information you have requested.

Question 1

You asked for all correspondence sent and received by the Scottish Government, including internally, minutes/notes from meetings and all briefings about the decision by the Court of Session to refuse the Scottish Government’s judicial review of the Order made under section 35 of the Scotland Act 1998, between January 15 2024 and April 15 2024. I enclose some information relating to this request.

An exemption applies under section 30(c) of FOISA (prejudice to conduct of public affairs) to some of the information requested. It is essential for MSPs and MPs to be able to write confidentially to Ministers and for Ministers to respond on the issues across their portfolio. Disclosing the content of these ministerial communications is likely to undermine their trust in the Scottish Government and will substantially inhibit communications, particularly where, as in this case, these discussions relate to a sensitive or controversial issue. This would significantly harm the Government’s ability to carry out many aspects of its work.

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 Ministers a private space within which to communicate with these stakeholders.

An exemption applies under section 36(1) of FOISA (confidentiality in legal proceedings) 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’. 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)(a) (personal data of applicant) applies to some of the information, because it is personal information of which you are the data subject.

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.

Question 2

You asked for full up to date costs of the judicial review, with a breakdown of the costs. 

Some of the information you have requested is available from Gender recognition reform - Section 35 Order: judicial review costs - gov.scot (www.gov.scot)

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 us again and we will send you a paper copy. 

The Scottish Ministers are liable for expenses incurred by the Secretary of State for Scotland. The Advocate General for Scotland recently enrolled a motion in the Court of Session to extend the time limit for lodging the account of expenses to 31 July 2024. The Court of Session has granted this motion, which means the time limit has been extended.

This Parliamentary Question was recently answered accordingly in the Scottish Parliament: Written question and answer: S6W-27664 | Scottish Parliament Website

The Scottish Government will publish further information on the costs of the judicial review, after information on the expenses incurred by the Secretary of State for Scotland is available.

In terms of Scottish Government staff costs in relation to the judicial review, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested because we do not hold a record of the number of staff who have been involved with this case nor do staff record the number of hours spent on any particular area of work. 

This is formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.

Question 3

You asked for the legal advice received before pursuing the judicial review and the spend on this.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information because it relates to 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 openand 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.

Your query on costs is dealt with in the answer to question 2 above.

Question 4

You asked for all prepared media lines for the court case before the decision was announced.

I attach our prepared media lines in relation to the court decision.

Question 5

You asked for all correspondence shared between the Scottish Government and the Equality Network in the last six months. As the heading of your FOI request is “Gender Recognition Reform FOI”, we have assumed you are seeking correspondence on Gender Recognition Reform. I attach a copy of an email to the Equality Network of 10 May 2024 and the letter enclosed from the Minister for Equalities which mentions Gender Recognition Reform.

An exemption applies to some of the information under section 38(1)(b) of FOISA (third party personal data) because it consists of personal information that may identify an individual and disclosing it would contravene the data protection principles in Article 5(1) of the UK 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.

Question 6

You asked for all correspondence and documentation surrounding the Cabinet Secretary’s statement to Parliament on 20 December 2023 between 15 December 2023 and 15 January 2024.

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

Under section 25(1) of FOISA, we do not have to give you information which is already reasonablyaccessible to you.

The statement by the Cabinet Secretary is at Official Report (parliament.scot) (columns 37 to 50). The Scottish Government also published a statement at Section 35 Order Judicial Review: Scottish
Government response - gov.scot (www.gov.scot). Our News Release about the statement is available at Section 35 judicial review – gov.scot (www.gov.scot).

Some of the information you have requested was previously provided to you in response to your previous FOI enquiry dated 1 April 2024 and handled by us under reference 202400407156.

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. The exemption recognises the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final statements are used. Disclosing the content of free and frank advice or briefing material will substantially inhibit such advice or briefing in the future, particularly because these discussions relate to a sensitive or 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 exemptions. 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 free and frank advice and views to Ministers in relation to planned announcements. It is clearly in the public interest that Ministers can properly provide sound information to Parliament (to which they are accountable) and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. 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 applies under section 30(c) of FOISA (prejudice to conduct of public affairs) to some of the information requested. It is essential for MSPs and MPs to be able to write confidentially to Ministers and for Ministers to respond on the issues across their portfolio and to gather views from other stakeholders confidentially. Disclosing the content of these ministerial communications is likely to undermine trust in the Scottish Government and will substantially inhibit communications, and such stakeholders will be reluctant to provide views in a full and frank manner if they believe that their views are likely to be made public, particularly where, as in this case, these discussions relate to a sensitive or controversial issue. This would significantly harm the Government’s ability to carry out many aspects of its work.

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 Ministers a private space within which to communicate with these stakeholders.

An exemption under section 38(1)(b) (third party personal data) of FOISA applies to some of the information requested, because it consists of personal information that may identify an individual and disclosing it would contravene the data protection principles in Article 5(1) of the UK 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.

Question 7

You asked for all correspondence shared between the Scottish Government and Alister Jack in the last six months. As the heading of your FOI request is “Gender Recognition Reform FOI”, we have assumed you are seeking correspondence on Gender Recognition Reform.

There has been no correspondence between the Scottish Government and Alister Jack on Gender Recognition Reform in the last six months.

This is formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

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 202400414828 - Information released

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