The Marriage Between Persons of Different Sexes (Prescribed Bodies) (Scotland) Amendment Regulations 2023 information: FOI release

Information requested

Information the Scottish Government holds relating to The Marriage Between Persons of Different Sexes (Prescribed Bodies) (Scotland) Amendment Regulations 2023.

Response

This Scottish Statutory Instrument (SSI) prescribed the Free Church of Scotland (Continuing) so all of its celebrants are authorised to solemnise mixed sex marriage, without needing to obtain individual authorisations from the Registrar General of Births, Deaths and Marriages for Scotland (the Registrar General).

I will take each element of your request in turn. I refer in some cases to published information on websites. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the websites listed, then please contact me again and I will send you a paper copy or copies.

1. The date on which the application (or initial request) for prescribed status by the Free Church of Scotland (Continuing) was received.

The formal request for prescribed status by the Free Church of Scotland (Continuing) was received by the Scottish Government on 31 July 2017.

2. The dates of any key stages in the assessment process, including: initial consideration; requests for further information; internal reviews or recommendations; ministerial consideration; and final decision.

The Scottish Government decided to prescribe the Free Church of Scotland (Continuing) on 27 June 2023.

Where we hold information about other stages you have identified, this is included in the extracts of records released in response to your queries numbered 4 and 6 below.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have sought in this element of your request. This is because there are no separate records of the dates and times when any particular actions relating to the request for prescribed status were underway, such as the dates when officials were considering the request.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have all of the information you have requested in this regard.

3. Copies of any internal guidance, criteria, or policy documents used in assessing that application.

There is published information about the factors which the Scottish Ministers currently take into consideration, when exercising their discretion to prescribe a body which has requested prescribed status and which they consider to be a religious or belief body as required under the provisions which apply as appropriate in the Marriage (Scotland) Act 1977 and the Civil Partnership Act 2004.

This information is contained in the policy notes to The Civil Partnership, Marriage Between Persons of Different Sexes and Same Sex Marriage (Prescribed Bodies) (Scotland) Amendment Regulations 2016 (pdf, 54.2 KB) and The Marriage Between Persons of Different Sexes (Prescribed Bodies) (Scotland) Amendment Regulations 2023 (pdf, 50.5 KB).

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have sought in this element of your request. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested in this regard.

4. Copies of any assessments, briefing notes, or recommendations prepared in relation to the application.

I attach a copy of most of the information you have sought in this element of your request.

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 apply.

An exemption under section s.38(1)(b) (third party personal data) of FOISA applies to some of the information you have requested. This is because it consists of personal information, such as names, email and postal addresses, telephone numbers and signatures that may relate to a living individual and disclosing it would contravene the data protection principles in Article 5(1) of the UK General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.

An exemption under section 30(b)(i) of FOISA applies to some of the information you have requested. This is because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.

The exemption under section 30(b)(i) is subject to the ‘public interest test’. 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 Scottish Government staff can provide full and frank advice to Ministers until the Government as a whole can reach a decision that is sound and likely to be effective. 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 process, which would not be in the public interest.

There is also published information about the assessment of the request in the Equality Impact Assessment Record (pdf, 57.4 KB) carried out in reaching a decision to make the SSI, and in the Policy Note (pdf, 50.5 KB) which accompanied the SSI.

5. Details of any external organisations or stakeholders consulted as part of the assessment process.

In addition to consulting with the Free Church of Scotland (Continuing) about its request and matters related to making the SSI, we consulted with the Registrar General, who is the Chief Executive of the National Records of Scotland (NRS) and a non-ministerial officeholder in the Scottish Administration, through their officials. NRS is a non ministerial department in the Scottish Government. There is published information about the Registrar General and NRS on their website: About us - National Records of Scotland (NRS)

6. Copies of correspondence (including emails and letters) between Scottish Government officials and: the Free Church of Scotland (Continuing); and any third parties, relating to the application.

I attach a copy of most of the information we hold from such correspondence with the Free Church of Scotland (Continuing) and officials at the NRS, from the point of initial application until a decision was communicated to the applicant.

As regards evidence submitted by the applicant to the Scottish Government as part of the consideration of this request, the Westminster Confession of Faith is published, as is The Practice of the Free Church of Scotland (pdf, 1,655 KB), the latter of which includes the Claim, Declaration and Protest of 1842, the Protest of 1843, the Questions and Formula of 1846 and the Form of Process of 1707.

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 an exemption under section s.38(1)(b) (third party personal data) of FOISA applies to that information. This is because it consists of personal information, such as names, email and postal addresses, telephone numbers and signatures that may relate to a living individual and disclosing it would contravene the data protection principles in Article 5(1) of the UK 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.

An exemption under section 30(b)(i) of FOISA applies to some of the information you have requested under this element. This is because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.

The exemption under section 30(b)(i) is subject to the ‘public interest test’. 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 each other until the Government as a whole can reach a decision that is sound and likely to be effective. 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, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

7. The total time taken from initial application to the making of the relevant Scottish Statutory Instrument.

The initial request as stated earlier in this response was made on 31 July 2017. The published SSI was made (signed) for the Scottish Ministers on 19 September 2023 and the SSI came into force on 1 December 2023. We do not hold information setting out the total time taken from initial application to the making of the SSI separately in our records. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested in this regard.

8. Any records setting out reasons for the decision to grant prescribed status

I refer to my response to the element of your request 4 above.

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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 202600516346 - Information released - Documents

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