NHS Fife tribunal costs and governance response: FOI release

Information requested

1. Any Scottish Government guidance issued to health boards regarding gender-critical belief protections following the Forstater and Bailey rulings.

2. Records of ministerial discussions or interventions related to NHS Fife’s handling of the Peggie tribunal.

3. Clarification on the role of the Equality and Human Rights Commission in monitoring NHS compliance with the Equality Act 2010.

Response

1. The Scottish Government has not issued any specific guidance to NHSScotland Boards either through a Directors Letter (DL) publication or through a workforce policy, regarding gender-critical belief protections following the Forstater and Bailey rulings.

2. While our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600. To establish the cost of undertaking this request, the phrase “handling” was interpreted more broadly to include Scottish Government engagement with the case across the full lifecycle of the tribunal process. Based on this interpretation, officials sent out an information trawl to key officials asking to provide material falling within scope of the request. This included targeted requests to those directly involved in policy and stakeholder engagement and NHS workforce issues. Once the information trawl was complete, officials completed an upper cost limit calculation which exceeded the upper cost limit of £600. This calculation is based on the time it takes to search for any documents in scope, the time it would take to sift through all the returns and the time it would take to complete redactions.

Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600.

You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at:
http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx

3. The role of the Equality and Human Rights Commission (EHRC) is to enforce and uphold laws that safeguard everyone’s right to fairness, dignity and respect. EHRC enforce the Equality Act 2010 and have unique powers to investigate when the law isn’t followed. When organisations fail to comply with equality and human rights law, the EHRC can use enforcement to resolve the issue.

If you require further information, you may wish to contact EHRC directly.

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.