Gender reform court case: FOI release

Information requested

1. Could you supply the Scottish Government's legal advice in regards to the gender reform legislation? If not, why?
2. Could you supply the estimations which you have received about how much the judicial review will cost, from lowest to highest?
3. All correspondence between the UK and Scottish Government regarding this legislation from February and March?
4. Shirley-Anne Somerville told Channel 4 that "the Scottish Government has given due consideration to the other alternatives to ensure we didn't get into the place of having a judicial review. Unfortunately, the UK Government has left us with no alternative but to do so. So this isn't a place we want to be in." Could you list the other alternatives the Scottish Government considered and why it did not go with them?
5. All correspondence between the social justice secretary\her office and Scottish Greens MSPs regarding the gender reforms from January 2023 to the date of this FOI.

Response

To address points 1 and 4, 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.

To answer point 2, as the litigation is ongoing and the costs may be affected by a number of factors, it is not possible to provide an estimate of the total costs. It would be speculative to comment on what the costs and expenses of the challenge will be, or who will meet them. The costs incurred by the Scottish Government will be published in due course. What information exists on cost implications relates to legal advice and disclosure would breach legal professional privilege. The arguments on the public interest noted for points 1 and 4 apply to this information too.

Regarding your point 3 request for information on any exchanges with the UK Government, Most of the information you have requested is already available via the links below. 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.

• Gender recognition: letter to the Secretary of State for Scotland - 21 January 2023 - gov.scot (www.gov.scot)
• Gender recognition: letter to the Secretary of State for Scotland - 24 January 2023 - gov.scot (www.gov.scot)
• Gender Recognition Reform Scotland Bill Section 35 Order 30 January | Scottish Parliament Website
• Gender Recognition Reform (Scotland) Bill Section 35 Order | Scottish Parliament Website
• Statement of reasons related to the use of section 35 of the Scotland Act 1998 - GOV.UK (www.gov.uk)
• The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 (legislation.gov.uk)

The rest of the information has already been provided under a previous FoI request (ref 202300351430) which is awaiting publication on the Scottish Government website. Under section 27(1) of FOISA, we do not have to give you information which is due to published in 12 weeks. Once published, you can access this via the website www.gov.scot and searching the reference provided. For ease I have attached the documents released under FoI 202300351430.

Our aim is to provide information whenever possible. However, in this instance, some of the information you have requested is not held by the Scottish Government for the purposes of FOISA because we received it in confidence from the UK Government. This means that, under the terms of section 3(2)(a) (ii) of FOISA, we are unable to disclose it in response to your request. However, you may wish to submit a new request under the Freedom of Information Act 2000 (FOIA) to the UK Government Scotland Office and the UK Government Equalities Office at who should be able to help you further.

On point 5, please find attached the information you have requested in the form of an email exchange between the office of the Cabinet Secretary for Social Justice and Maggie Chapman MSP regarding a parliamentary question, reference: S6W-17198. The link to the published question can be found here: Written question and answer: S6W-17198 | Scottish Parliament Website. The exemption under section 25(1) of FOISA is still applicable on this point.

While our aim is to provide information whenever possible, in this instance we are also unable to provide some of the information you have requested because an exemption(s) under section s.38(1) (b) (third party personal information) of FOISA applies to that information. This is because some of the information you have asked for is the personal data of third parties and disclosing it (such as names or personal details) would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.

This information was shared by the Scottish Government with Maggie Chapman MSP in line with the Cooperation Agreement, paragraph 20, which states: "The Scottish Government and the Green Group commit to a ‘no surprises’ approach to business in Parliament. This means consulting each other on proposals for parliamentary business, including on motions for debate and amendments to motions.”

For ease, I have included a link to that agreement here: Cooperation Agreement between the Scottish Government and the Scottish Green Party Parliamentary Group - Cooperation Agreement between the Scottish Government and the Scottish Green Party Parliamentary Group - gov.scot (www.gov.scot)

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.

FOI - 202300351749 - Information release

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