Religious observance and religious education in schools information: FOI release

Information requested

Part 1. Please provide details of all correspondence between the Cabinet Secretary for Education and Skills and her officials concerning the proposals to amend the legislation on religious observance and religious education in schools and the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill. This should include emails, letters, details of in-person and online meetings, texts, Whatsapp messages, in addition to ministerial briefings, agendas and notes.

Part 2. Please provide details of all meetings held between officials and/or the Cabinet Secretary for Education and Skills and stakeholders during which any of the following topics were discussed, between January 2024 and June 2025:

• religious observance in schools;
• the proposals to amend the legislation on religious observance and religious education in schools;
• the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill.

Response

I enclose a copy of some of the information you requested. Annex A responds to Part 1 of your request and Annex B responds to Part 2 of your request.

Some of the information you have requested is available from gov.scot and www.parliament.scot. Annex A highlights when a document is available elsewhere and provides a URL link to the website for ease. 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.

Exemptions under sections s.29(1)(a), s.29(1)(b), s.30(b)(i), s.30(b)(ii), s.30(c), s.36, s,38(1)(b) of FOISA applies to some of the information you have requested.

Under s.29(1)(a) of FOISA, information which relates to the formulation or development of government policy is exempt from release. The Commissioner has interpreted “formulation or development of policy” as the consideration or development of options and priorities for Scottish Ministers, who will subsequently determine which of these should be translated into political action and/or legislation and when.

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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the 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 develop and 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 proposals to amend the legislation on religious observance and religious education in schools and the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill 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.

Under s.29(1)(b) of FOISA, information relating to Ministerial communications is exempt from release. This includes communications relating to proceedings of the Scottish Cabinet (or of any committee of that Cabinet). “Minister” includes junior Scottish ministers as well as members of the Scottish Government. The exemption covers information “relating to” Ministerial communications, so it covers more than just direct communications between Ministers. It could also cover things like records of discussions between Ministers, drafts of letters, whether or not the letters were finalised or sent. Communications between private secretaries, when corresponding on their respective Minister’s behalf, are also covered by 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 some public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is greater public interest in maintaining a private space for Ministers to have robust, uninhibited discussions about key issues in order to develop effective policy. Should Ministers fear that communications may be disclosed prematurely, it could inhibit honest debate and discussion.

Under s.30(b)(i) of FOISA, information is exempt from release if it would or would be likely to, inhibit substantially the free and frank provision of advice. Although the exemption will often be applied to advice or to an exchange of views, it can apply to other types of information.

Under s.30(b)(ii) of FOISA, information is exempt from release if it would or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. Although the exemption will often be applied to advice or to an exchange of views, it can apply to other types of information. This exemption recognises the need to allow Ministers some private space for discussion.

The s.30(b)(i) and s.30(b)(ii) 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 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 maintaining the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can reach a final decision. 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 policy-/decisionmaking process.

Under s.30(c)of FOISA, information is exempt from release if disclosure would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.

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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in protecting confidential communications. Ministers and officials often engage with external stakeholders on sensitive issues and disclosure without consent could damage trust and discourage future openness.

Under s.36(1) of FOISA, information is exempt from release if it is information of which a claim to confidentiality of communications could be maintained in legal proceedings (for example if information is "legal privileged").

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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in preserving legal professional privilege. There is a strong wellestablished public interest in maintaining the confidentiality of legal advice. It ensures that public authorities can seek and receive candid legal advice without fear of premature disclosure.

Under 38(1)(b) of FOISA, information is exempt from release if it is the personal data of a third party. Personal data is exempt from disclosure if disclosure would contravene any of the data protection principles in Article 5(1) of the UK GDPR and in section 34(1) of the DPA 2018. The exemption is absolute, so it is not subject to the public interest test.

In line with the wording of your request and for your interest, I have made some interpretations on how to best answer this request.

For Part 1. of your request I have interpreted your request as referring only to information related to Part 1 of the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill. Additionally, I have applied the timescale provided in Part 2. of your request to Part 1 (January 2024 to June 2025).

For Part 2. of your request, I have interpreted “details of all meetings” to mean the date, time, attendees and meeting title.

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 202500471377 - Information released - Annex A

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PDF

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4.0 MB

FOI 202500471377 - Information released - Annex B

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107.6 kB