Documentation about impact of Supreme Court ruling defining a woman and the planned misogyny law: FOI release

Information requested

“All documentation held by the Scottish Government, including correspondence sent and received (including internal), minutes/notes from meetings, briefings, analysis, about the impact of the Supreme Court ruling defining a woman and the planned misogyny law, between April 10 2025 and the date of this FOI (19 May 2025)"

Response

I enclose copies 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 exemptions under sections:

• Section 29(1)(a) – Formulation or development of Scottish Government policy;
• Section 30(b)(i) – Free and frank provision of advice;
• Section 30(c) – Otherwise prejudice effective conduct of public affairs;
• Section 36(1) – Confidentiality in legal proceedings (covers legal advice)); and
• Section 38(1)(b) – Personal data relating to third party

of FOISA applies to that information.

The reasons why those exemptions apply are explained below:

• Section 29(1)(a) (Formulation or development of Scottish Government policy) applies where the information relates to the stage of the policy process where options are identified and considered, risks are identified, and recommendations and submissions are presented to Scottish Ministers.
• Section 30(b)(i) (Free and frank provision of advice) applies to information provided to Ministers that outline internal discussion of policy options specific to the Misogyny Bill, where releasing the information would seriously impede the Scottish Government’s ability to provide candid, robust advice to Ministers in future discussions.
• Section 30(c) (Otherwise prejudice effective conduct of public affairs) applies specifically to information which quotes previously received legal advice, which is used in this context to allow for the free and frank exchange of views for the purposes of deliberation on the policy.
• Section 36(1) (Confidentiality in legal proceedings (covers legal advice)) applies to legal advice provided in relation to the development of the policy; and
• Section 38(1)(b) (Personal data relating to third party) applies where information such as names, email addresses and contact details are contained within the information requested.

Exemptions 29(1)(a), 30(a), 30(b)(i), 30(c), and 36(1) 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 exemption.

We recognise that there is public interest in transparency and accountability in the work of the Government. Disclosure of the information withheld under sections 29(1)(a), 30(a), 30(b)(i), 30(c), and 36(1) of FOISA could enhance public understanding of the development of policy, the reasoning behind decisions made by Ministers and the legal basis for these decisions.

However, we consider that these interest are outweighed by the need to maintain the space for internal discussion and advice that supports effective government. Releasing information under s29(1)(a) could compromise the integrity of the policymaking process, disclosure under sections 30(a) and (30)(b)(i) could inhibit open and honest discussion between Ministers and officials, and in this case, sections 30(c) and 36(1) ensure that legal advice and discussion of the policy implications of that legal advice remains confidential.

On balance, we are satisfied that the public interest in maintaining these exemptions outweigh the public interest in releasing the information.

Exemptions under s38(1)(b) (Personal data relating to third party) are 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 https://www.gov.scot/foi-responses.

FOI 202500467033 - Information Released - Annex

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PDF

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