Briefings to Cabinet Secretary for Justice and Home Affairs regarding Stage 3 proceedings of the Victims, Witnesses and Justice Reform (Scotland) Bill: FOI release

Information requested

Please supply all items of information in all briefings supplied to Justice Secretary Angela Constance for the Stage 3 proceedings of the Victims, Witnesses and Justice Reform (Scotland) Bill in September 2025. This should include, but not be limited to, the briefing which covered the comments of views of Professor Alexis Jay which Ms Constance referenced in the proceedings of 16 September.

Response

I enclose a copy of most of the information you requested in pdf format.

Some of the information you have requested (namely, briefing which covered the comments of the views of Professor Alexis Jay) is available on the Scottish Parliament website at this link - Followup information from meeting on 17 December 2025 | Scottish Parliament Website. 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 listed, then please contact me again and I will send you a paper copy.

Some of the information you have requested is exempt under s38(1)(b) of FOISA as it relates to third party personal data. 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.

Exemptions under the following sections of FOISA, which are subject to the 'public interest test', apply to some of the information you have requested. The reasons for not providing the information under these exemptions are also explained below:

Section 29(1)(a) - development of Scottish Government policy

This exemption applies because some of the information relates to development of Scottish Government policy. 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 high quality policy and decision-making, and in the properly considered development of policies and decisions. This means that Ministers and officials need to be able to 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 decisions 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.

Section 30(b)(i) - free and frank provision of advice

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemption recognises the need for Ministers to have a private space within which to seek advice and views from officials. Disclosing the content of free and frank briefing material will substantially inhibit such briefing in the future. 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 free and frank advice and views to Ministers to fully inform decision-making. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

Section 30(b)(ii) - free and frank exchange of views

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 Ministers and officials to have a private space within which to discuss issues and options with external stakeholders before reaching a settled Scottish Government view. Taking into account of all the circumstances of this case, we have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise 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 to communicate with external stakeholders as part of process of exploring both the positions of the government and the stakeholders on the issue. This private space is essential to enable all options to be properly considered, before decisions can be taken based on fully informed discussions, advice and evidence. Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials and stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Section 30(c) - effective conduct of public affairs

This exemption applies because it is essential for Ministers and officials to be able to meet and communicate, often in confidence, with external stakeholders on a range of issues. Disclosing the content of these communications/information about these meetings is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to participate in meetings, provide full and frank views and may disengage from working with government if they believe that their views or discussions they have participated in are likely to be made public. This would significantly harm the government’s ability to carry out many aspects of its work and could adversely affect its ability to gather all of the evidence it needs for fully formed policy and decision making. Taking account of all the circumstances of this case we have found that 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 communicate and meet with appropriate external stakeholders for the reasons set about above. Disclosure is likely to undermine engagement and collaborative working between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy/decision making process, which would not be in the public interest.

Section 36(1) - confidentiality of communications (legal advice)

This exemption applies because this information is subject to legal professional privilege. Taking into account of all the circumstances of this case, 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 can receive legal advice in confidence like any other public or private organisation.

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 202500497788 - Information released - Annex

File type

PDF

File size

12.0 MB