Education Scotland - Details of legal advice sought regarding Supreme Court Judgement April 2025: FOI release

Information requested

As Education Scotland will be aware, the Supreme Court judgement of April 2025 regarding the definition of ‘sex’ in the Equality Act 2010 was that sex was biological and binary. Later that year, in September, the Equality & Human Rights Commission [EHRC] published a statement:

"We have been clear that service providers, associations and public functions should not wait for the code of practice to be published to make any changes needed to comply with the law. As duty-bearers they must assure themselves of their legal responsibilities in their own specific circumstances and seek independent legal advice where necessary."

In the context provided by both the Supreme Court judgement and the statement issued by the EHRC and in terms of the provisions of the Freedom of Information [Scotland] Act 2002, I write to ask that Education Scotland provides me with the following information:

1. Has Education Scotland obtained their own legal advice on complying with the judgement and with all relevant legislation and regulations?

2. If the answer to this is yes, can you please provide me with:
a. A copy of the legal advice obtained by the Education Scotland
b. The total cost to Education Scotland of obtaining that advice
c. A copy of any planned actions, including timetables, Education Scotland has drawn up based on the advice received and ensuring that Education Scotland will be compliant, as an employer and as a service provider, with the judgement and with all relevant legislation and regulations
d. A note of the total costs anticipated to Education Scotland of changes needed to policy and practice to ensure compliance with the judgement and with all relevant legislation and regulations

3. If the answer to question 1 is no, can Education Scotland provide copies of papers and minutes which cover the decision-making process deciding not to obtain legal advice?

4. Has Education Scotland flagged the reputational, financial and other risks associated with non compliance with the judgement and with all relevant legislation and regulations, in the Education Scotland Corporate Risk Register?

5. If yes, can you please provide me with a copy of the Corporate Risk Register entry?

6. If no, can you please provide me with a copy of papers, emails and any relevant correspondence associated with a decision not to include the matter in the Corporate Risk Register.

Response

Questions 1, 2 & 3

I can confirm that Education Scotland did not receive or commission any legal advice following the Supreme Court Ruling. Whilst our aim is to provide information wherever possible, this is a formal notice under section 17 of FOISA that Education Scotland does not hold this information.

Questions 4, 5 & 6

We are unable to provide some of the information you have requested because exemptions under section 30(c) (effective conduct of public affairs) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

An exemption under section 30(c) of FOISA (otherwise prejudice effective conduct of public affairs) applies to some of the information requested. The analysis of the actions to be taken in order to manage a risk contribute significantly to the effective conduct of public affairs. Disclosure would impinge on Education Scotland’s ability to assess and discuss possible controls and mitigations in order to avoid situations which would harm or disrupt our services.

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. While we recognise that there is some public interest in release as part of open, transparent and accountable government, and to inform public debate, this is outweighed by the vital public interest in ensuring a private space within which to consider the current risks to the organisation, assess them and explore all available options for controlling and mitigating those risks successfully.

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