- 24 Oct 2019
Date received: 27 Sep 2019
Date responded: 23 Oct 2019
a) all legal advice and/or guidance on whether Sexual Harm Prevention Orders (SHPOs) can be introduced in Scotland with conditions of residence attached instead of waiting for further legislation in the UK Parliament; and
b) all information contained in documents and correspondence with regard to the delay in the introduction of SHPOs in Scotland.
I have concluded that the original decision should be confirmed, with modifications.
I have considered all of the information identified as being within the scope of your original request and have reviewed all of the information withheld from our original response. As you have requested in your review response, I have therefore re-examined all information which was withheld under exemptions 29(1)(a), 36(1) and 38(1)(b). The findings of my review are outlined below.
I have found that information concerning the names of Ministers and special advisers to whom certain correspondence was copied was wrongfully withheld under section 38(1)(b) and I have enclosed copies of those documents with the names of Ministers and Special Advisers included.
I have assessed that some information previously withheld under section 29(1)(b) should more appropriately have been withheld under section 30(b)(i), the free and frank provision of advice, and section 30(b)(ii), the free and frank exchange of views. 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 purpose of deliberation. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers and other officials before the Scottish Government reaches a settled public view.
Disclosing the content of free and frank advice on the different options for commencing legislation on SHPOs risks substantially inhibiting the provision of such advice in the future, particularly because a decision on exactly how and when to commence this legislation has not yet been taken. Equally, it is important that Ministers have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions with Police Scotland on the commencement of legislation on SHPOs risks substantially inhibiting such discussions in future, because stakeholders may be reluctant to provide their views fully and frankly if they believe those views are likely to be made public, particularly where these decisions relate to a potentially sensitive or controversial issue, such as the balance of risk and benefit in different approaches to commencing legislation intended to protect the public from people who pose a risk of sexual harm.
These exemptions are subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, I 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 an 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 and external stakeholders can freely discuss and provide full and frank advice to Ministers, as part of the process of exploring and refining the Government's position on the commencement of legislation on SHPOs until such time as these provisions are brought into effect. This private thinking space is essential to enable all the options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, officials and stakeholders which in term, risks undermining the quality of the decision making process, which would not be in the public interest.
I have also assessed some of the information that was withheld under section 29(1)(a) should be released, as, having considered the public interest in its disclosure outweighs the public interest in upholding the exemption. I have attached this information with this reply.
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.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House