Comments on Equality and Human Rights Commission’s draft Code(s) of Practice: FOI release

Information requested

Please send me your comments on the Equality and Human Rights Commission’s draft Code(s) of Practice received on or after 16 October 2025.

This should include:

• consultation materials and your responses under s14(10) of the Equality Act 2006
• any other comments sent to the Secretary of State, the UK Government, or the Equality and Human Rights Commission (EHRC);
• and their replies.

Response

I have interpreted your request as seeking all information held by the Scottish Government from 16 October 2025 to the date of your request, relating to the EHRC’s draft Code(s) of Practice. This includes consultation materials and responses, as well as correspondence (both incoming and outgoing) between the Scottish Government, the UK Government, the EHRC, and the Secretary of State containing comments regarding the draft Code(s) of Practice.

Most of the information you have requested is being withheld under the following exemptions of FOISA: Section 28(1) (relations within the United Kingdom); and Sections 30(b)(i) and 30(b)(ii) (free and frank provision of advice and exchange of views). These exemptions are explained in more detail below.

However, I am able to provide some information within the scope of your request. I enclose one item of correspondence, which has been released in full: a letter from the Secretary of State to the Cabinet Secretary for Social Justice dated 12 October 2025.

You may find it helpful to note that the Scottish Government responded to the EHRC’s public consultation on 25 July 2025, you can find the response publicly available here: Equality and Human Rights Commission - code of practice changes consultation: SG response - gov.scot.

Under section 25(1) of FOISA, we do not have to provide you with information that is already reasonably accessible to you. However, if you do not have internet access to obtain this information from the website(s) listed, please contact me again and I will be happy to provide a paper copy.

Exemptions

Exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information you have requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations.

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 maintaining good relations between the Scottish Government and the UK Government, and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, such as the EHRC’s draft Code(s) of Practice. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

Exemption section 30(b)(i) and section 30(b)(ii) of FOISA (free and frank provision of advice / free and frank exchange of views for the purposes of deliberation) applies to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. This exemption recognises the need for officials and ministers to have a private space within which to provide free and frank advice 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 EHRC’s draft Code(s) of Practice.

These exemptions are 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 on matters relating to the EHRC’s draft Code(s) of Practice. 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.

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 202600517606 - Information Released - Letter from UKG

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