Civil Service briefings produced on the UNCRC prior to the bill being introduced: FOI release

Information requested

Copies of any briefings or memos or other analysis on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, produced by the Civil Service prior to the Bill being introduced to the Scottish Parliament.

Response

Under section 10(1) of FOISA, our response to your request was due on 23 December 2021. Unfortunately, it has taken longer than expected due to the complexity of the request, the volume of material to be reviewed, staffing changes and wider competing pressures on the Children’s Rights Unit. I apologise for this delay. Please see the response below.

Some of the information requested is released under FOI Ref: 202100257512 and 202100257606. I enclose a copy of most of the information you requested separately.

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 of exemption(s) under the following sections of
FOISA applies to that information:

• s.25(1) – Information otherwise accessible,
• s.29(1)(a) - formulation or development of government policy,
• s.29(1)(b) – Ministerial communications,
• s.30(b)(i) - substantial inhibition of free and frank provision of advice),
• s.30(b)(ii) - substantial inhibition of free and frank exchange of views for the purposes of deliberation,
• s.36(1) - Confidentiality in legal proceedings (covers legal advice), and

The reasons why these exemptions apply are explained below.

Section 25(1) – Information otherwise accessible

Some of the information you have requested is available from: https://www.gov.scot/policies/humanrights/childrens-rights/, https://www.gov.scot/groups/childrens-rights-working-group/ and https://www.parliament.scot/bills-and-laws/bills/united-nations-convention-on-the-rights-of-the-childincorporation-scotland-bill.

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.

Section 29(1)(a) – formulation or development of government policy

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 UNCRC Bill. This exemption is subject to the ‘public interest test’. 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 UNCRC Bill will be disclosed, and that may undermine or constrain the Government’s debate on that policy while it is still under discussion and development.

Section 29(1)(b) – Ministerial communications

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers. This exemption is subject to the ‘public interest test’. 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 a private space within which policy options can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process.

Sections 30(b)(i) and 30(b)(ii) – free and frank exchange of views for the purposes of deliberation

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) 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 Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position. Disclosing the content of free and frank briefing material will substantially inhibit such briefing in the future, particularly because discussions on the issues are still ongoing and final decisions have not yet been taken.

These exemptions are subject to the ‘public interest test’. 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. It is clearly in the public interest that Ministers can fully assess options and properly and 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.

Section 36(1) – legal advice

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 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.

Section 38(1)(b) – Personal data relating to third party

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names, contact details of individuals, 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.

FOI 202100257620 - Information released

File type

125 page PDF

File size

794.5 kB