Hate Crime & Public Order (Scotland) Bill: FOI release

Information requested

Any written records which contain or record discussions by Ministers or Civil Servants, of the Hate Crime and Public Order (Scotland) Bill in relation to, or in comparison with, the now repealed, Offensive Behaviour and Threatening Communications (Scotland) Act, 2012.

Response

Some of the information you have requested is available online from the following publications:

Independent Review of Hate Crime Legislation in Scotland -
https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/;

Legal Definition of Sectarianism Working Group - https://www.gov.scot/publications/final-reportworking-group-defining-sectarianism-scots-law/;

One Scotland: consultation on current hate crime legislation: https://www.gov.scot/publications/onescotland-hate-home-here-consultation-hate-crime-amending-current-scottish-hate-crimelegislation/pages/4/;

Hate Crime and Public Order (Scotland) Bill – Equality Impact Assessment
https://www.gov.scot/publications/hate-crime-public-order-scotland-bill-equality-impact-assessment/;
Hate Crime and Public Order (Scotland) Bill - Financial Memorandum https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-order-scotland-bill/introduced/financialmemorandum-hate-crime-and-public-order-scotland-bill.pdf;
Hate Crime and Public Order (Scotland) Bill – Policy Memorandum
https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-orderscotland-bill/introduced/policy-memorandum-hate-crime-and-public-order-scotland-bill.pdf.

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 me again and I will send you a paper copy.

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 29(1)(a) (policy formulation), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views), 36(1) (confidentiality in legal proceedings) and 38(1)(b) (personal information) of FOISA applies to that information. The reasons why the exemptions apply are explained below.

Exemption under s29(1)(a)
An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on the Hate Crime and Public Order (Scotland) Bill.
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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the Hate Crime and Public Order (Scotland) Bill will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Exemption under s30(b)(i)
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. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the Hate Crime and Public Order (Scotland) Bill will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive issue such as stirring up of hatred.

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 a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s policy position on the Hate Crime and Public Order (Scotland) Bill, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. 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.

Exemption under s30(b)(ii)
An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This  exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. 
Disclosing the content of free and frank discussions on Hate Crime and Public Order (Scotland) Bill will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive issue such as stirring up of hatred.

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 a private space within which officials can provide full and frank advice to Ministers and officials, as part of the process of exploring and refining the Government’s policy position on the Hate Crime and Public Order (Scotland) Bill, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. 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.

Exemption under s36(1)
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is 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.

Exemptions under s38(1)(b) (personal information)
An exemption under section 38(1)(b) of FOISA applies to some of the information you have requested because it is personal data of a third party, for example names of individuals or other personal data and disclosing it would contravene the data protection principles in Article 5(1) of the 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.

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FOI-202000046860 Information released

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