Supreme Court ruling information: FOI release

Information requested

1. Could you supply all documentation held by the Scottish Government, including correspondence sent and received (including internal), minutes/notes from meetings, briefings, analysis, about pro-trans rights protests due to the Supreme Court ruling defining a woman, between April 1 2025 and the date of this FOI?

2. . Could you supply all documentation held by the Scottish Government, including correspondence sent and received (including internal), minutes/notes from meetings, briefings, analysis, with or about For Women Scotland, between April 1 2025 and the date of this FOI?

3. Could you supply all correspondence sent and received and minutes/notes from meetings, between the Scottish Government and UK Government about the Supreme Court ruling defining a woman, between April 1 2025 and the date of this FOI?

4. Could you supply all minutes/notes from meetings of the National Advisory Council for Women and Girls, from the last three months?

5. Could you supply a full list of the meetings held by the Scottish Government about the Supreme Court defining a woman ruling, between April 16 2025 and the date of this FOI?

Response

I enclose a copy of most of the information you 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 the exemptions s.38(1)(b) (personal information), s29(1)(a) (formulation or development of government policy), s30(b)(ii) (free and frank exchange of views for the purposes of deliberation) and s36(1) (Confidentiality - legal advice privilege) of FOISA applies to some of that information. The relevant exemptions

An exemption under section 38(1)(b) of FOISA (personal information) applies to some the information requested because it is personal data of a third party, i.e. the names and individual telephone and email contact details of officials within the Scottish Government or UK government departments, 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.

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 impact of the Supreme Court judgement in case of For Women Scotland v Scottish Ministers.

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 impact of the Supreme Court judgement in the case of For Women Scotland v Scottish Ministers 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.

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 the impact of the Supreme Court judgement in the case of For Women Scotland v Scottish Ministers will substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and decisions have not been taken, and they relate to a sensitive issue.

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 explore and refine the Government’s position on the impact of the Supreme Court judgement in the case of For Women Scotland v Scottish Ministers, 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, so that good 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.

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.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202500466070 - Information released - Annex

File type

PDF

File size

1.5 MB