Cabinet Secretary for Justice on cutting unpaid work hours: FOI release

Information requested

Correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone calls, minutes of meetings, briefings or otherwise) between the Cabinet Secretary for Justice's office and any other stakeholder, either external or internal, regarding the topic of cutting unpaid work hours issued as part of Community Payback Orders between the 1 October 2020 to 28 January 2021.

Response

To avoid any uncertainty about the interpretation of your request, it should be noted that we have treated officials within the Scottish Government as falling within the definition of “internal stakeholders” and have treated any information passing between the Cabinet Secretary for Justice’s office and internal / external stakeholders relating to the topic specified as “correspondence”.

Attached is a copy of most of the information requested. 

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 30(b)(i) (substantial inhibition to free and frank provision of advice), 30(b)(ii) (substantial inhibition to free and frank exchange of views), 30(c) (substantial prejudice to the effective conduct of public affairs), 36(1) (legal professional privilege) and 38(1)(b) (third party personal data) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

An exemption under section 30(b)(i) of FOISA 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 reduction of unpaid work hours would be likely to substantially inhibit the provision of any similar advice relating to action required to mitigate the COVID-19 pandemic in the future, which would be particularly detrimental at present given the ongoing nature of the issues affecting the justice system.

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 prepare said advice. This is essential to enable all options to be properly considered, based on the best available advice, so that well informed and robust policy decisions can be taken. Premature disclosure of this information is likely to lead to a reduction in the comprehensiveness and frankness of such advice in the future, which will in turn undermine the quality of the policy-making process, which would not be in the public interest.

An exemption under section 30(b)(ii) of FOISA 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 issues and options, including with external stakeholders, before the Scottish Government reaches a settled public view.

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 Ministers and officials a private space within which to communicate, including with appropriate external stakeholders, as part of the process of exploring and refining the Government’s policy position on the reduction of unpaid work hours, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence.

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply in combination 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 Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final lines to take are used. Disclosing the content of free and frank briefing material on the reduction of unpaid work hours will substantially inhibit such briefing in the future, particularly where such discussions relate to a similarly sensitive or controversial issue.

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 can provide free and frank advice and views to Ministers in briefing outlining how the Government may wish to response to questions raised about a particular policy. It is clearly in the public interest that Ministers can properly robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on the reduction of unpaid work requirements would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward any similar work relating to the impact of coronavirus on the community justice system. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

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.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information you have requested because it is personal data of a third party, i.e. the names and contact details of members of staff in grades below the Senior Civil Service, 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.

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.

FOI202100187501 - Information released

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