Petition PE1458 documentation: FOI Review

Information requested

Original Request 202600505107

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

You added that ‘it has been five years since the Scottish Government gave a commitment to create the register of judges' interests as called for in Petition PE1458, filed at the Scottish Parliament in 2012’. You also state that ‘given the length of time which has passed the public interest clearly favours disclosure’.

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

I apologise for the delay in sending you this review response. We work hard to meet statutor deadlines. I am sorry that we have not done so in this case.

I have identified that one exemption cited in the original response section 42 (legal professional privilege) was incorrect.

Section 42 is an exemption contained in the Freedom of Information Act 2000, which applies to UK Government departments and public bodies operating under UK legislation. Your request, however, was handled under the Freedom of Information (Scotland) Act 2002 (FOISA), where the equivalent exemption is section 36(1).

I therefore uphold the application of a legal privilege exemption to this information, but I amend the exemption to reflect the correct statutory provision.

Some material which has been disclosed, on review, has been withheld under an exemption where I find the material to be out of scope or that it should be released as follows:

Pg 1 – information was withheld under section 29(1)(a) of FOISA which in the revised document is now released.

Pg 8 – information was withheld under section 29(1)(a) which I agree should be withheld, but this is because it falls out of scope of the request made.

Pg 9 – information in the subject title was withheld under section 29(1)(a) which in the revised document is now released.

Pg 9 - information was withheld under section 29(1)(a) which I agree should be withheld but this is because it falls out of scope of the request made.

Pg 10 - information in the subject titles were withheld under section 29(1)(a) which in the revised document is now released.

Pg 10 - information was withheld under section 29(1)(a) which I agree should be withheld but this is because it falls out of scope of the request made. Further information contained in an email dated 22 August 2025 16:23, also falls out of scope but as this has already been released to you I am not removing it.

Pg 11 – information was withheld under section 29(1)(a) and section 30(b)(i) which I agree should be withheld, but this is because it falls out of scope of the request made. Further information contained in an email dated 21 August 2025 17:16 also falls out of scope, but as this has already been released to you I am not removing it.

Pg 12 - information was withheld under section 29(1)(a) which I agree should be withheld but this is because it falls out of scope of the request made. Further information contained in the email also falls out of scope, but as this has already been released to you I am not removing it.

Pg 14 - information was withheld under section 29(1)(a) which I agree should be withheld, but this is because it falls out of scope of the request made. In one instance the information was withheld under section 29(1)(a) and this is upheld and marked up accordingly on the document.

Pg 15, 16 - information in the subject titles were withheld under section 29(1)(a) which in the revised document is now released.

Pg 16 - information was withheld under section 29(1)(a) which I agree should be withheld, but this is because it falls out of scope of the request made.

P17 - In one instance the information was withheld under section 29(1)(a) and this is upheld and marked up accordingly on the document.

Pg 22 – 26 – modifications have been made and further information has been disclosed as marked up on the document. In addition, section 36(1) has been applied and the document marked up accordingly.

Pg 29 – 32 – section 36(1) has been applied and whilst information was withheld in the original response, I have also withheld names to protect the source providing the advice.

Pg 35 onwards - information was withheld under section 29(1)(a) which I agree should be withheld, but this is because it falls out of scope of the request made. In two instances the information was withheld under section 29(1)(a) and this is upheld and marked up accordingly on the document (pg 52 and 70).

Personal Data Redactions – Section 38(1)(b)

These appear throughout pages 1-33 of the redacted documents you received.

What was redacted

• Names of junior Scottish Government officials (below Senior Civil Service level)

Justification:

Disclosure would breach data protection principles as the individuals are not senior public officials.

Personal data is exempt from disclosure if disclosure would contravene any of the data protection principles in Article 5(1) of the UK GDPR and in section 34(1) of the DPA 2018.

Policy Formulation– Section 29(1)(a)

Found primarily in 2 documents on pages 14 and 17 and the Official Sensitive JRI submission (pages 22–26), Pages 52 (which is pg 18 within the actual document) and 70 (which is pg 12 within the actual document).

What was redacted

• Ministerial recommendations relating to the Judicial Register of Interests
• Policy options under consideration
• Draft conclusions and rationales before they were finalised
• Internal commentary
• Unpublished analysis feeding into ministerial decision‑making
• Sensitive internal submissions not yet in the public domain

Justification:

The material forms part of the ongoing formulation of policy on the Judicial Register of Interests. Whilst there is some public interest in disclosure, as it would show how the Government is considering issues of judicial ethics and how manifesto commitments are being assessed, the material reflects live and unresolved policy analysis. Releasing it could misrepresent positions not yet agreed, undermine the ability to provide candid advice to Ministers, and strain relations with the judiciary on sensitive constitutional matters. On balance, the public interest lies in protecting the integrity of ongoing policy formulation.

I confirm that unless indicated above, Section 29(1)(a) is, in my view, correctly engaged within these pages. These documents reflect ongoing development of government policy, contain options and unfinalised reasoning, that have not yet resulted in a public decision.

Legal Professional Privilege – Section 36(1)

Appearing in the 2020 email chain (pages 29–33).

Having reviewed the redacted material I can confirm that it consists of legal advice provided to the Scottish Government.

FOISA Exemption Applied:

Section 36(1) – Confidentiality of communications (legal professional privilege)

Justification:

Section 36(1) applies because the redacted text /withheld material is legal advice and disclosure would breach legal professional privilege. Although this exemption is subject to the public interest test, the wider considerations still favour maintaining privilege.

While disclosure might offer some transparency about the legal basis for decisions on judicial governance, there is a strong and long‑established public interest in ensuring the Government can seek and receive candid legal advice in confidence. Releasing privileged legal analysis would undermine this protection and offer limited transparency benefits given the technical and context‑dependent nature of the advice. For these reasons, the public interest in disclosure for reasons of transparency is outweighed by the public interest in maintaining the exemption.

Summary Table of Exemptions Applied

Category of Information	FOISA Exemption	Summary Rationale
Personal data (names, emails, phone numbers, signatures)	s.38(1)(b)	Not fair or lawful to release; no public interest in personal details
Policy formulation	s.29(1)(a)	Protects live policy development and internal thinking
Legal advice	s.36(1) – not s42 FOIA	Legal professional privilege applies

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 202600509805 - Information Released - Documents

File type

PDF

File size

1.5 MB