Correspondence between Scottish Ministers and the Lord Advocate in relation transgender prisoners: FOI release

Information requested

In relation to Topical Question time today in the Scottish Parliament, the Cabinet Secretary for Justice and Home Affairs refused to provide justification for pursing legal action in relation to its policy on transgender prisoners: "Presiding Officer, with the greatest of respect to you and all members in the chamber, as the question relates directly to live court proceedings, it is not appropriate for me or any member of the Scottish Government to comment." 1) Did the cabinet secretary or any other cabinet secretary including the FM obtain/ask the Lord Advocate or law officers/SGLD for any advice in relation to above topic, i.e. commenting on live court proceedings as is permitted under section 5 of the 1981 contempt of court act? 2) I request any advice given 3) I request any communications within Government which discuss the ability to comment on live court proceedings, as is permitted under section 5 of the 1981 contempt of court within the past 6 months.

Response

I enclose a copy of some of the information you requested.

In relation to parts 1 and 2 of your request, a refusal notice under section 18 (neither confirm nor deny), in conjunction with exemption under section 29(1)(c) (legal advice involving Law Officers) and section 36(1) (legal advice), applies as we consider that to reveal whether the information requested exists, or is held by the section 36(1) (legal advice), applies as we consider that to reveal whether the information requested exists, or is held by the Scottish Government, would be contrary to the public interest.

In relation to part 3 of your request, some information is provided. The scope of this request is considered to be related to section 5 of the 1981 Act, which has been informed by appropriate engagement.

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 exemption(s) under section(s) 30(b)(ii) (free and frank exchange of views for the purposes of deliberation); s.36(1) (legal advice) and s.38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption(s) applies are explained below.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some 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 communications relating to sensitive policy matters will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive or controversial issue such as transgender prisoners and commenting on a live legal action.

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 communication of a position on sensitive matters.

Section 36(1) – legal advice

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some 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.

Section 38(1)(b) – applicant has asked for personal data of a third party

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, ie names of individuals, 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.

Information to assist

The Scottish Government commented on 12 November:

It is the Scottish Government’s long-held position that it is inappropriate for Scottish Ministers to comment on live litigation. In all cases, we have an obligation to uphold the independence of the judiciary. we do not want the Government to ever be seen as interfering in the work of the independent courts.

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 202500493242 - Information released - Annex A

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