Petition PE1458 documentation: FOI release

Information requested

Documents, meetings, communications and discussions held by the Scottish Government and anyone acting for it – and any other person or organisation or public authority including the Scottish Parliament, MSPs, MPs, Lord President, Judicial Office, Scottish Courts and Tribunals Service, Law Society of Scotland, Faculty of Advocates and any other organisation, relating to

Petition PE1458

and

the Scottish Government's commitment to create a register of judges' interests as called for in Petition PE1458

and

any work by the Scottish Government and any other organisation consulted by the Scottish Government relating to proposals contained in Petition PE 1458 and any other material considered by the Scottish Government in relation to and accumulated as a result of Petition PE 1458 including any communications with the Scottish Parliament and any others, including communications with, or representations from MSPs, former MSPs, members of the legal profession and judiciary, academics, and anyone else - to create a register of judges' interests

from October 2024 to the date of this FOI request.

Response

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

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 of the following exemptions apply:

Section 38(1)(b) (personal information)

Exemptions under section 38(1)(b) of FOISA applies to some of the information you have requested. This is because it is personal data of a third party, e.g. names and contact details 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.

Section 29(1)(a) (formulation or development of government policy)

An exemption under section 29(1)(a) of FOISA applies to some of the information requested because it relates to the formulation and development of the Scottish Government’s policy in respect of a judicial register of interests. This exemption is subject to the ‘public interest test’.

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 implementation and 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 in respect of a judicial register of interests 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 or exchange of views

Exemptions under section 30 (b)(i) of FOISA applies to some of the information you have requested. Information is exempt under sections 30(b) if disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This means that if releasing certain information would hinder open discussions or advice-giving, it may be withheld. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view.

We have considered whether the public interest in disclosure outweighs the public interest in applying this exemption. On balance, we conclude that the public interest favours upholding the exemption. While we recognise the public interest in transparency and informing public debate, there is a stronger public interest in preserving a private space for officials to provide full and frank advice to Ministers as they explore and refine the Government’s policy on a Judicial Register of Interest. This space is essential to allow all options to be properly considered based on the best available advice. Premature disclosure would be likely to inhibit these discussions and undermine the quality of the policy‑making process, which would not be in the public interest.

Section 42 – legal professional privilege

Exemptions under section 42 of FOISA applies to some of the information you have requested. This is because it some of the information contained would reveal information that is subject to ‘legal professional privilege’. 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

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 202600505107 - Information released - Documents

File type

PDF

File size

1.4 MB