Timeline of Scottish Government/UK Government correspondence leading to section 35 order: FOI release

Information requested

On the 19th of April 2023, during a statement to the Scottish Parliament on the Challenge to the UK Government’s Section 35 Order on the Gender Recognition Reform (Scotland) Bill, Shirley Ann Somerville referred to a timeline of correspondence between the Scottish Government and UK Government when she said the following: “There was no Ministerial contact until the UK Minister for Women and Equalities responded to a letter sent in October by my predecessor Social Justice Secretary, Shona Robison, which led to a meeting the day before Stage 3 of the Bill. Cross-border effects were discussed at that meeting, but no changes were requested by the UK Government, and there was no mention of consideration of a Section 35 Order.”

Based on Somerville’s statement, the following information about details in the statement are requested:

1. A copy of the correspondence that was sent by former Social Justice Secretary Shona Robinson in October 2022.
2. A copy of the UK Government Ministerial response to Shona Robinsons October letter.
3. A copy of the minutes of the meeting that was held the day before Stage 3 of the Bill. Presumably this meeting took place on the 21st December or within a few days of that date.

Response

1. Please see attached a copy of the correspondence as requested.
2. Our aim is to provide information whenever possible. However, in this instance, 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 Equalities Office. A further exemption under section 28(1) of FOISA about relations with the UK applies to the information requested. This exemption applies because disclosure would be likely to prejudice substantially relations between the Scottish Government and the UK Government because it would reveal candid internal discussion about the other administration’s policies and prematurely reveal negotiating positions. 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 and the UK Government. Disclosure of this information will mean that frequent and open communication will be inhibited in the future.
3. An exemption under section 28(1) of FOISA about relations with the UK also applies to the information requested for point 3. 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 maintaining relationships between the Scottish Government and the UK Government, and in protecting the free exchange of information between the administrations.

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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 http://www.gov.scot/foi-responses.

202300352517_Gender Recognition - letter from Shona Robison to Nadhim Zahawi - October 2022

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