Consideration of alternatives to judicial review of section 35 Order: FOI release

Information requested

Further to the Cabinet Secretary for Social Justice's statement to Channel 4 News on 12 April that "the Scottish Government has given due consideration to the other alternatives [to bringing legal action on the current Section 35 Order], to ensure that we didn't get into a place of having a judicial review" (see here: https://twitter.com/C4Ciaran/status/1646214316880691220?s=20), please describe the other alternatives considered, and provide information held on the consideration of these alternatives, including whether this involved any exchanges with external organisations, and if so, any information held on that. Please also include any assessment undertaken of the expected timetable for concluding legal proceedings, and that of any other alternative approach.

Response

An exemption under section 36(1) of FOISA 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 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. In addition, the case is currently before the Courts.

Regarding your request for information on any exchanges with external organisations, Most of the information you have requested is already available and I have provided links below. 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 websites listed, then please contact me again and I will send you a paper copy.

• Gender recognition: letter to the Secretary of State for Scotland - 21 January 2023 - gov.scot (www.gov.scot)
• Gender recognition: letter to the Secretary of State for Scotland - 24 January 2023 - gov.scot (www.gov.scot)
• Gender Recognition Reform Scotland Bill Section 35 Order 30 January | Scottish Parliament Website
• Gender Recognition Reform (Scotland) Bill Section 35 Order | Scottish Parliament Website
• Statement of reasons related to the use of section 35 of the Scotland Act 1998 - GOV.UK (www.gov.uk)
• The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 (legislation.gov.uk)

The rest of the information has already been provided under a previous FoI request (ref 202300351430) which is awaiting publication on the Scottish Government website. Under section 27(1) of FOISA, we do not have to give you information which is due to published in 12 weeks. Once published, you can access this via the website www.gov.scot and searching the reference provided. For ease I have attached the documents released under FoI 202300351430.

Our aim is to provide information whenever possible. However, we have contacted the UK Government and they have advised, in this instance, that exemptions apply. Some of the information you have requested is not held by the Scottish Government for the purposes of FOISA because we received it in confidence from the UK Government. This means that, under the terms of section 3(2)(a)(ii) of FOISA, we are unable to disclose it in response to your request. However, you may wish to submit a new request under the Freedom of Information Act 2000 (FOIA) to the UK Government Scotland Office and the UK Government Equalities Office at who should be able to help you further.

Regarding the timetable for legal proceedings, It would be speculative to comment on the duration of the process at this time. FOISA Exemptions under section 30(b)(ii) of FOISA (free and frank exchange of views) apply to the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views. The arguments on the public interest noted previously apply to this information too.

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.

Documents for release - 202300351430

File type

4 page PDF

File size

181.6 kB