Short life working group information: FOI Review

Information requested

Original request 202500472952

1. Minutes/notes of all meetings of the short life working group established to co-ordinate the Scottish Government's response to the Supreme Court judgment in For Women Scotland vs. The Scottish Ministers;

2. A copy of the terms of reference for the working group, and any notes on how these terms of reference were created (e.g. earlier drafts, comments on those drafts from stakeholders, any other comments made during the approval process for the TOR etc.);

3. Any briefing papers, discussion papers, Powerpoint presentations or other documents associated with the working group and its meetings;

4. A note of the composition of the working group, including the roles of its members, their reasons for being on the working group, and how they were selected. This does not need to include names of staff, but could list, for example, "two senior HR staff, one adviser from the legal department, one facilities management staff, one adminstrative worker, one representative from the staff LGBTI+ Network, and one representative from the staff Sex Equality and Equity Network (SEEN).

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

1. Minutes/notes of all meetings of the short life working group established to co-ordinate the Scottish Government's response to the Supreme Court judgment in For Women Scotland vs. The Scottish Ministers;

2. A copy of the terms of reference for the working group, and any notes on how these terms of reference were created (e.g. earlier drafts, comments on those drafts from stakeholders, any other comments made during the approval process for the TOR etc.);

3. Any briefing papers, discussion papers, Powerpoint presentations or other documents associated with the working group and its meetings;

4. A note of the composition of the working group, including the roles of its members, their reasons for being on the working group, and how they were selected. This does not need to include names of staff, but could list, for example, "two senior HR staff, one adviser from the legal department, one facilities management staff, one adminstrative worker, one representative from the staff LGBTI+ Network, and one representative from the staff Sex Equality and Equity Network (SEEN).

I have concluded that the original decision should be confirmed with modifications as explained below.

I apologise as the original response was not as clear as it could have been. Copies of some documents were provided showing redactions but they did not, as they should have, indicate which exemptions had been relied upon for each redaction. It was also unclear which documents related to which aspects of the request. I have addressed those points in the response below.

I am also releasing further information previously withheld, see Annexes.

Point 1

In respect of point 1, there was a settled intention to publish the minutes of the working group within 12 weeks of the date of receiving your FOI request (there are no other notes of the meeting) . That proposal was made to the Cabinet Secretary for Social Justice on 13 June 2025. Following her agreement on 13 June 2025 and the First Minister's agreement on 20 June 2025, minutes of the meetings of 30 April, 13 May and 29 May and 17 June were then published on the gov.scot website. See: UK Supreme Court Judgment (For Women Scotland Ltd v The Scottish Ministers): working group - gov.scot In that context it was entirely appropriate for the initial response of 25 July to withhold that information under section 27(1) of FOISA (information intended for future publication). I also concur with the Public Interest Test decision relating to that decision.

The original response did not include Public Interest Test arguments in relation to the cited exemptions of section 27 (information intended for future publication). I have therefore set that out below.

In relation to the s27 exemption the original response should have included the following assessment, 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. However, given that the information requested will be subject to release within the appropriate time frame we do not consider that the public interest in publishing the information immediately outweighs the public interest in the administrative process running its course.

Point 2

In respect of point 2, I would separate this into two aspects:

a) "A copy of the terms of reference for the working group"; and,

b) "any notes on how these terms of reference were created (e.g. earlier drafts, comments on those drafts from stakeholders, any other comments made during the approval process for the TOR etc.)"

Regarding 2a, the original response stated that:

"Some of the information you have requested is available from UK Supreme Court ruling on meaning of sex in Equality Act: update which provides further information on the Short Life Working Group, which has been included in the Terms of Reference. 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."

This was referring to the gov.scot webpage: UK Supreme Court ruling on meaning of sex in Equality Act: update - gov.scot which was published on 28 May 2025. The following excerpt taken from that webpage is a statement of the Terms of reference of the Short Life Working Group.

The aims of the group are to:

• ensure that there is a consistent approach to the understanding of the ruling;
• review legislation, guidance and policies within Scottish Government portfolios that the ruling impacts on; and
• ensure the Scottish Government is ready and prepared once the EHRC’s revised Code of Practice is published.

On that basis, it was correct for the original response to cite s25 of FOISA (information otherwise accessible) in relation to that item of information

In relation to part 2b, I have identified that the following documents are pertinent to this part of the request and have compiled them into Annex A:

• Document 18 - this is part of an email between officials dated 2 May (some of the information in the email has been omitted as it is out of scope for this part of the request which is specifically concerned with Terms of Reference).
• Document 19 - this is an email between officials of 23 May
• Document 20b - a submission of 30 April entitled "Short Life Working Group on the FWS Supreme Court Judgement ".
• Document 21 - email of 27 May between officials that confirms a change to the Terms of Reference to clarify the role of the Permanent Secretary.

I have omitted Document 17 from Annex A as I consider it out of scope for this request because that email between officials contained no comments or explanation of the actual content of the draft Terms of Reference.

I am releasing some further information to you previously withheld, however, some information remains exempt under the following exemptions:

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views)) does apply to some of the information requested i.e. information provided as Document 19. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views. This exemption recognises the need for officials to have a private space within which to provide free and frank exchange of views to other officials before the Scottish Government reaches a settled public view. Disclosing the content about the matters being discussed by the Short Life Working Group will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to sensitive issues.

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 a private space within which officials can provide full and frank views to other officials, as part of the process of developing the Government’s position on the impacts of the Supreme Court judgement on the definition of a woman in the Equality Act 2010, until the Government as a whole can adopt a decision 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 decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the decision-making process, which would not be in the public interest.

Section 38 (personal information) also applies to some of the information in Annex A 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. However, this exemption is not subject to the public interest test.

Point 3

The original response did not make fully clear what information about briefing papers, discussion papers, Powerpoint presentations or other documents associated with the working group and its meetings were held by the Scottish Government. Nor did the response set out a Public Interest test explanation regarding the use of “30(b)(i) Free and frank exchange of advice”.

For clarity I have interpreted this part of the request including the phrase "other documents associated with the working group and its meetings" to refer to documents that were provided to the Short Life Working Group for information, discussion or consideration, or which set out meeting outcomes. I have not included internal emails about the basic mechanics of provision of papers.

I have now attached relevant documents as follows:

These are:

Annex B
Document 2a - copy of SLWG Tracker @13 May

Annex C
Document 2b - copy of SLWG Tracker @ 29 May

Annex D
Document 2c - copy of SLWG Tracker @17 June

(NB: The Tracker was only created on our electronic document record management (erdm) system on 1 May, after the initial meeting of 30 April 2025. This is a 'live' document that is continually updated, however earlier 'versions' are retained in the erdm system and I have extracted the versions that were current at the time of each Short Life Working Group meeting.)

Annex E
Document 6 - Agenda and Chair's Brief for SLWG meeting of 29 May.

Annex F
Document 9 - Membership Tracker

Annex G
Document 15 - Agenda and Chair's Brief for SLWG meeting of 17 June

Please note that Document 18 (email dated 2 May, update to Permanent Secretary, Directors-General and Short Life Working Group members regarding the initial meeting of 30 April 2025) also contains relevant material for this part of the request. It has already been included in Annex A.

The updates at the Short Life Working Group were provided verbally but would have been based on the content of the 'SLWG Tracker' which logs the issues that have been identified for resolution across Scottish Government. I have provided copies of the Tracker as it would have been at 13 May, 29 May and 17 June 2025 with redactions based on the exemptions below.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. Disclosing this information would substantially prejudice our ability to conduct a full review of legislation, guidance and to evaluate their compliance with the ruling and subsequent messaging from the EHRC relating to their updated Code of Practice and accompanying guidance. This is an extremely sensitive and complex area which needs to be worked through rapidly. There would be a significant probability that officials would be reluctant to record updates, views and assessments, including of risk, if there was an expectation that those updates – based on initial, partial information and requiring further input (e.g. from colleagues with legal expertise) – were to be made public. There would be a concern that parties could become concerned about a matter which would later be resolved through revised policies and formally confirmed in a clear and unambiguous manner. Any constraints on surfacing issues for resolution, providing initial advice and making an early assessment of potential risks would constitute substantial prejudice to the effective conduct of public affairs in terms of 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 a public interest in disclosing information as part of open, transparent and accountable government. However, there is a greater public interest in protecting the process of surfacing issues for resolution, providing initial advice and making an early assessment of potential risks to resolve complex and sensitive issues and ensuring that the Scottish Government is able conduct this aspect of its business effectively.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice about the matters being discussed by the Short Life Working Group will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to sensitive issues.

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 a private space within which officials can provide full and frank advice to other officials, as part of the process of developing the Government’s position on the impacts of the Supreme Court judgement on the definition of a woman in the Equality Act 2010, until the Government as a whole can adopt a decision 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 decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the decision-making process, which would not be in the public interest.

In addition, 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.

Point 4

The original response did not make fully clear what information about the composition of the working group was held, what was being withheld and under what exemption.

To clarify, at the time there request was received, there was a settled intention to publish the composition of the working group and the roles of its members. It was therefore correct to withhold that information under s27 (information intended for publication). The composition of the group was subsequently published on gov.scot: UK Supreme Court Judgment (For Women Scotland Ltd v The Scottish Ministers): working group - gov.scot.

There was some further information which I consider relates to why members were in the group and how they were selected, and which was not included in the original response.

The final two paragraphs in section 1 "Context" of Document 20b in Annex A sets out the principles of the intended composition of the working group, section 3.2 of the same document sets out which officials would be invited to attend to represent their respective business areas and section 3.3. sets out the roles of specific individuals and members.

The only other relevant information is in Document 19 (i.e. "Terms of reference – we need to update these as EHRC consultation wording out of date and so are the timescales. I also want it clearly stated on the Tors that the group reports to the Perm Sec. The group only need to note the changes."). This has already been included in Annex A.

In this instance we are unable to provide some of the information you have requested, because 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.

About FOI

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FOI 202500477689 - Information released - Annex A - G

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