UK Supreme Court Judgment Working Group documentation: FOI release

Information requested

• Minutes of meetings of the Working Group on the Scottish Government's response to the Supreme Court Judgment in FWS Vs The Scottish Ministers from 16/01/26-13/02/26 inclusive.
• Copies of all reports, consultations, discussion papers, briefings, presentations, and other papers produced by or for the WG, or received by the WG from other parties. Please include correspondence to and from the Working Group, as well as any other documents associated with the work of the Group.

Response

In relation to the UK Supreme Court Judgment Working Group, I have applied the date range of 16 January 2026 and the 13 February 2026 to your request. There has been two meetings within the requested date range which occurred on 29 January 2026 and 12 February 2026.

The meeting minutes from 29 January have now been published and can be found here: UK Supreme Court Judgment (For Women Scotland Ltd v The Scottish Ministers): working group - gov.scot. The meeting minutes from 12 February will also be published on this web page within 12 weeks of your request. Therefore, an exemption under section 27(1) of FOISA applies.

In relation to your request for copies of all reports, consultations, discussion papers, briefings, presentations, and other papers produced by or for the WG, or received by the WG from other parties, I can confirm that there were no papers, presentations or additional documents. I have enclosed therefore the agenda and chairs brief for the meetings on 29 January and 12 February. Please note an exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party. An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice, and exemption Section 36(1) - claim to confidentiality of communications has been used where Information relates to the provision of legal advice.

Exemption Explanations

Exemption under section 27(1) of FOISA applied to information you have requested because this information is intended to be published within 12 weeks of the date of your request. The Scottish Government intends to publish the Minutes of each of the Working Group’s meetings to maintain transparency. As this information will be published within 12 weeks of the date of your request, we consider it reasonable to withhold the information rather than release the information requested before it has been published.

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 releasing the information requested to be transparent. However, given that the information requested will be subject to release within the appropriate timeframe we do not consider that the public interest in releasing the information immediately outweighs the public interest in the administrative process running its course.

Exemption 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 will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive or controversial issue such as the UK Supreme Court Judgment Working Group.

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 exploring and refining the Government’s position on matters relating to the UK Supreme Court Judgment Working Group. 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 Ministers and officials, which in turn will undermine the quality of the decision-making processes, which would not be in the public interest.

Exemption under section 38(1)(b) of FOISA (personal information) applies a small amount of the information requested because it is personal data of a third party, ie names, 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.

Exemption Section 36(1)) (Claim to confidentiality of communications) has been used where Information relates to the provision of advice by the Scottish Government Legal Directorate or any request for the provision of advice by the Scottish Government Legal Directorate. Legal advice privilege covers communications between lawyers and their clients where legal advice is sought or given. The communications do not have to be connected with litigation.

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 202600506643 - Information released - Annex

File type

PDF

File size

162.4 kB