FOI/202600515105 · FOI · partially withheld
Social Security Scotland - Information on compliance with Supreme Court judgment: FOI release
Information requested
As Social Security Scotland will be aware, the Supreme Court judgment of April 2025 regarding the definition of ‘sex’ in the Equality Act 2010 was that sex was biological and binary. Later that year, in September, the Equality & Human Rights Commission [EHRC] published a statement:
“We have been clear that service providers, associations and public functions should not wait for the code of practice to be published to make any changes needed to comply with the law. As duty-bearers they must assure themselves of their legal responsibilities in their own specific circumstances and seek independent legal advice where necessary.”
In the context provided by both the Supreme Court judgment and the statement issued by the EHRC and in terms of the provisions of the Freedom of Information [Scotland] Act 2002, I write to ask that Social Security Scotland provides me with the following information:
Request for information 1: Has Social Security Scotland obtained their own legal advice on complying with the judgment and with all relevant legislation and regulations?
Request for information 2: If the answer to this is yes, can you please provide me with:
1. A copy of the legal advice obtained by Forestry and Land Scotland. 2. The total cost to Social Security Scotland of obtaining that advice. 3. A copy of any planned actions, including timetables, Social Security Scotland has drawn up based on the advice received and ensuring that Social Security Scotland will be compliant, as an employer and as a service provider, with the judgment and with all relevant legislation and regulations. 4. A note of the total costs anticipated to Social Security Scotland of changes needed to policy and practice to ensure compliance with the judgment and with all relevant legislation and regulations.
Request for information 3: If the answer to question 1 is no, can Social Security Scotland provide copies of papers and minutes which cover the decision-making process deciding not to obtain legal advice?
Request for information 4: Has Social Security Scotland flagged the reputational, financial and other risks associated with non-compliance with the judgment and with all relevant legislation and regulations, in the Social Security Scotland Corporate Risk Register?
Request for information 5: If yes, can you please provide me with a copy of the Corporate Risk Register entry?
Request for information 6: If no, can you please provide me with a copy of papers, emails and any relevant correspondence associated with a decision not to include the matter in the Corporate Risk Register.
Response
Request for information 1 to 3:
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to the information requested because it is 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.
Request for information 4 to 6:
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to the information requested. The analysis of the actions to be taken in order to manage a risk, contribute significantly to the effective conduct of public affairs. Disclosure would impinge on Social Security Scotland’s ability to assess and discuss possible controls and mitigations in order to avoid situations which would harm or disrupt our services.
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, this is outweighed by the vital public interest in ensuring a private space within which to consider the current risks to the organisation, assess them and explore all available options for controlling and mitigating those risks successfully.
The Scottish Government accepts the judgment of the Supreme Court. It ruled that “woman” in the Equality Act 2010 is defined by biological sex. The government accepts this ruling.
Public bodies, as both employers and service providers, are responsible for ensuring that they comply with all relevant legal obligations. Following the UK Supreme Court’s judgment in FWS v Scottish Ministers, this duty specifically includes compliance with the Equality Act 2010. It is for each organisation to ensure that its policies and practices are legally compliant, and for the Equality and Human Rights Commission, the regulator of the Act, to oversee and enforce compliance.
The Scottish Government - as both an organisation and an employer - must also ensure full compliance with the Supreme Court judgment. The Supreme Court Working Group continues to coordinate and drive the programme of work required as a consequence of the judgment, including the updating of relevant legislation, guidance, and internal policies. Actions delivered by the group are published on the Scottish Government website - UK Supreme Court Judgment (For Women Scotland Ltd v The Scottish Ministers): working group - 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 https://www.gov.scot/foi-responses.
Contact Please quote the FOI reference Central Correspondence Unit Email: contactus@gov.scot Phone: 0300 244 4000 The Scottish Government St Andrew's House Regent Road Edinburgh EH1 3DG
Detected exemption language
Response Request for information 1 to 3: An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to the information requested because it is 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. Request for information 4 to 6: An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to the information requested.
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