Gender recognition bill: FOI release

Information requested

1. Which firm is being instructed to represent the Scottish government in the judicial review petition? Is it the Scottish government legal directorate or an external law firm?
2. Which counsel have been instructed to represent the government in the judicial review petition? Please supply names and advocate stables.
3. Please provide a copy of the petition lodged to the court of session on behalf of the government.
4. Please also provide a copy of any pre action letters and response in respect of this matter.

Response

1. The Scottish Government has its own legal representation in the Scottish Government Legal Directorate.
    
2. External Counsel are Douglas Ross KC and Paul Reid. An exemption under section 36(1) of FOISA applies to some of the information because it relates to legal advice and disclosure would breach legal professional privilege.
   
   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 as part of open and transparent government, and to inform public debate. 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. In addition, the case is currently before the Courts.
    
3. The petition has been published and is available on the Scottish Government Website here: Gender recognition reform: Section 35 Order challenge - petition - gov.scot (www.gov.scot) . 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 website(s) listed, then please contact me again and I will send you a paper copy.
    
4. No pre action letter was sent by SGLD to colleagues in the Advocate General’s Office and therefore no response. By way of explanation under the Civil Procedure Rules in England and Wales there is a requirement for such correspondence before litigation commences (other than in very urgent cases). There is no such requirement in Scotland. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.