Cabinet Secretary for Justice correspondence mentioning gendered law: FOI release

Information requested

All written material to/from the Cabinet Secretary for Justice since 01 Sept 2024 which mentions who is to be covered by gendered law.

Response

Exemptions apply under section 29(1)(a) , section 30(b)(i), section 30(b)(ii) , section 36(1) and section 38(1)(b) of FOISA to some of the information that you have requested.

Section 29(1)(a) provides that information is exempt from FOISA if it relates to the formulation or development of Scottish Government policy. Section 30(b)(i) provides that information is exempt from FOISA if it release would be likely to substantially inhibit the free and frank provision of advice. Section 30(b)(ii) provides that information is exempt from disclosure where its release would be likely to substantially inhibit the free and frank exchange of views for the purposes of deliberation. Section 36(1) provides that information which is subject to legal professional privilege is exempt. Section 38(1)(b) provides that information is exempt if it contains personal data.

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 formulation and development of the Scottish Government’s policy on how gendered law is to apply in the context of legislation concerning misogyny.

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 options for implementing gendered law will be disclosed in the near future and this may undermine or constrain the Government’s ability to effectively develop policy on a matter which is still under discussion and development.

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 received advice and discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice and exchanges of views on the development of gendered law risks substantially inhibiting the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken.

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 to Ministers and Ministers and officials can freely exchange views on the issue of gendered law, as part of the process of exploring and refining the Government’s policy position on gendered law in any legislation concerning misogyny, until the Government as a whole can adopt a policy 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 policy-making process, which would not be in the public interest

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) applies to some of the information because it is the personal data of a third party.

The exemption at section 38(1)(b) 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 202500447597 - Information Released - Annex

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