Information on the (Fairness at Work) 'procedure' introduced in 2017: FOI release

Information requested

 

Information on the initial development of ‘the procedure’ referenced in Nicola Sturgeon’s statement to Parliament on 8 January 2019. Information should include:

any dates showing the stages of development of ‘the procedure’ prior to its inception in December 2017;

any information on who was involved in the development of ‘the procedure’;

what level of involvement those individuals had i.e. drafting, comments, sign-off;

who initially instigated the development of ‘the procedure’;

when ‘the procedure’ was first sent to Scottish Ministers;

when ‘the procedure’ was signed off by Scottish Ministers;

any changes suggested by Scottish Ministers to ‘the procedure’ prior to its final sign-off;

any changes suggested by special advisers to ‘the procedure’ prior to its final sign-off;

and any initial drafts of ‘the procedure’.

 

Response

 

The answers to a number of your questions are;

Work on ‘the procedure’ was initiated following a discussion at Cabinet, which the Deputy First Minister referenced in response to a parliamentary question on 31 October 2017.

http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11157&i=101717

The procedure was sent to, and approved by, the First Minister in December 2017.

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 sections 35(1)(c) and 30(b)(i) and 30(b)(ii) of FOISA apply to that information. The reasons why those exemptions apply are explained below.

 

Exemptions apply, subject to the public interest test.

Exemptions under section 35(1)(c) and 30(b)(i) and 30(b)(ii) of FOISA apply to the information you have requested.

Section 35(1)(c) applies because disclosure would, or would be likely to, prejudice substantially the administration of justice. This exemption recognises that the disclosure of some information could prejudice court proceedings.

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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the substantial public interest in ensuring that the courts in Scotland can operate without trials being prejudiced. In our assessment, release of this information could prejudice a case currently in court in Scotland.

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) also apply to some of 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 for the purposes of deliberation. The exemptions recognise the need for senior officials and Ministers to have a private space within which to seek advice and views before reaching the settled public position. Disclosing the content of free and frank exchanges on the development of the procedure will substantially inhibit such policy development in the future, particularly because of the sensitive nature of the content of this policy.

These exemptions are 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 exemptions. 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 offer provide free and frank advice and views.

 

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.