Documentation around ending two child benefit cap and meetings regarding Supreme Court gender ruling: FOI release

Information requested

1. Could you supply all documentation held by the Scottish Government, including correspondence sent and received (including internal), minutes/notes from meetings, briefings, analysis, about ending the two-child benefit cap, between February 15 2026 and March 25 2026?

2. How many meetings were held by government officials about the Supreme Court gender ruling between April 30 2025 and August 30 2025?

Response

Question 1

I enclose a copy of most 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 exemptions under sections s.30(b)(ii) (free and frank exchange of views), s.36(1) (confidentiality regarding legal advice) and s.38(1)(b) (personal information) of FOISA apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

Question 2

The Supreme Court Working Group, which is responsible for driving and coordinating the work required as a consequence of the Supreme Court Judgment, met 9 times during the period specified. Further information about the Supreme Court Working Group is available here: UK Supreme Court Judgment (For Women Scotland Ltd v The Scottish Ministers): working group - gov.scot.

As required under FOISA, enquiries were made across relevant Scottish Government Directorates to identify other meetings held by officials during this period where the Supreme Court Judgment was the main topic of discussion. As a result of this exercise, a further 79 meetings were identified.

Therefore the total number of meetings identified during the period 30 April 2025 to 30 August 2025, where the Supreme Court judgment was the main subject of discussion, is 88. This response reflects the outcome of reasonable and proportionate searches and enquiries undertaken across relevant Scottish Government Directorates to identify meetings where the Supreme Court judgment was the main topic of discussion during the period specified. While every effort has been made to identify all meetings held during the specified period where the Supreme Court judgment was the main topic of discussion, it is important to note that not all discussions between officials are formally recorded, particularly where they took place informally or as part of routine working‑level engagement.

Annex

Question 1

An exemption applies

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 (in this case the names and contact details of individuals), and disclosing it without their consent could 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.

Exemptions apply, subject to the public interest test

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of 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. These exemptions recognise 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 the two-child benefit cap would substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and decisions are still being taken. 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. This private thinking space is essential to enable all options to be properly considered. 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 process, which would not be in the public interest.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested. 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 and we recognise that there is some public interest in release. 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.

An exemption under section 29(1)(a) of FOISA (formulation of Scottish Administration policy) applies to some of the information requested. This exemption applies as formulation and development of the policy to mitigate the two-child cap was ongoing. 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 because the policy to mitigate the two-child cap is a high-profile policy and there is an interest in open and transparent government. However, this is outweighed by the public interest in ensuring that when topics are in the early stages of policy formulation, officials and Scottish Ministers are provided with private space which is essential when discussing available options.

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 202600515121 - Information Released - Annex

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