Publication - FOI/EIR release

Delays to introduction of Sexual Harm Prevention Orders: FOI release

Published: 3 Sep 2019

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

Published:
3 Sep 2019
Delays to introduction of Sexual Harm Prevention Orders: FOI release
FOI reference: FOI/201900002897
Date received: 29 Jul 2019
Date responded: 30 Aug 2019
Information requested

a) All legal advice and or guidance on whether Sexual Harm Prevention Orders can be introduced in Scotland with conditions of residence attached instead of waiting for further legislation in the UK parliament.
b) All information contained in documents and correspondence with regard to the delay in the introduction of SHPOs in Scotland.

Response

While our aim is to provide information whenever possible, we are unable to provide you with information in response to your request at point a), by virtue of section 17(1) of the FOISA (Information not held).
As previously stated, our position remains that Sexual Harm Prevention Orders, and any associated conditions, would not be enforceable across the UK until the UK Government amends reserved legislation. Until that point, the current arrangements will remain as these mean that the preventative orders available in Scotland continue to be enforceable in other UK jurisdictions.
In response to your request at point b), I enclose copies of information responding to your request.

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 38(1)(b) – personal information of a third party, section 29(1)(b) - formulation of Scottish administration policy etc; or an exemption under section 36(1) of FOISA - confidentiality in legal proceedings, because some of the information requested is legal advice and disclosure would breach legal professional privilege.
Information is also exempt if it relates to personal data or information which would make it possible to identify individuals. Disclosure of this information would be in contravention of data protection principles. Some of the documents have therefore been partially redacted to remove the names and contacts details of officials. 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.

The exemption relative to legal advice 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.

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Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
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Regent Road
Edinburgh
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