FOI/202500477264 · FOI · partially withheld
Disclosure Scotland's response to the UK Supreme Court judgment: FOI release
Information requested
1. Legal and Policy Review
Any internal communications, legal advice, briefings, minutes, or emails that reference the implications of the Supreme Court ruling for Disclosure Scotland’s policies, equality duties, safeguarding procedures, or communications. Any Equality Impact Assessments (EQIAs) amended or initiated in response to this judgment.
2. Gender vs Sex in Safeguarding & Vetting
Guidance issued to staff or partners that defines or references “sex”, “gender identity”, “transgender”, or “non-binary” in the context of risk assessment, safeguarding, or PVG Scheme vetting. Any changes to PVG scheme eligibility, vetting criteria, or terminology in light of the Supreme Court ruling.
3. Third-Sector Influence & Payments
A list of all payments made since 1 January 2022 to any of the following:
Stonewall Scotland or Stonewall UK LGBT Youth Scotland Equality Network Scottish Trans Or any other third-sector body contracted to deliver diversity, equality, inclusion, or safeguarding advice.
Please include:
Supplier name, Date and amount, Description of services delivered or purpose of the payment.
4. External Audits, Benchmarking & Training
Any participation in Stonewall’s Diversity Champions programme or other third-party equality benchmarking since 2022. Training materials delivered to staff or senior leaders on sex, gender identity, or inclusion, particularly where the concept of “sex” may have been conflated with gender identity.
Response
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemption(s) under section(s) s.29(1)(a) (policy formulation), s. 30(a)(i) (free and frank provision of advice), s.30(a)(ii) (free and frank exchange of views), s.36(1) (claim to confidentiality of communications), s.38(1)(b) (personal information) of FOISA applies to that information.
Section 29: Formulation of Scottish Administration policy
Section 29(1)(a) of FOISA exempts information from disclosure where disclosure would, or would be likely to, cause substantial harm to the formulation or development of Scottish Government policy. 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 because of an abiding interest in open and transparent government. However, this is outweighed by the public interest in ensuring policy can be developed through different stages before being agreed and announced.
Section 30: Prejudice to effective conduct of public affairs
Sections 30(b)(i) and 30(b)(ii) of FOISA exempts information from disclosure where disclosure would, or would be likely to, inhibit substantially free and frank provision of advice and free and frank exchange of views for the purposes of deliberation.
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 because of an abiding interest in open and transparent government. However, this is outweighed by the public interest in maintaining private space to discuss topics at preliminary stages of consideration.
Section 36: Confidentiality
Sections 36(1) of FOISA exempts information from disclosure where information is legally privileged. 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 because of an abiding interest in open and transparent government. However, this is outweighed by the public interest in ensuring a private space for Ministers to receive and discuss advice from their legal advisers.
Section 38: Personal Information
Section 38(1)(b) (third party personal data) applies to some information. This is not subject to the ‘public interest test’.
I have responded to each of your questions below:
1. Legal and Policy Review
Any internal communications, legal advice, briefings, minutes, or emails that reference the implications of the Supreme Court ruling for Disclosure Scotland’s policies, equality duties, safeguarding procedures, or communications.
I have enclosed some of the information you have requested.
Any Equality Impact Assessments (EQIAs) amended or initiated in response to this judgment.
Disclosure Scotland holds no such reports. This is a formal notice under section 17(1) of FOISA that Disclosure Scotland does not have the specific information you have requested.
2. Gender vs Sex in Safeguarding & Vetting
Guidance issued to staff or partners that defines or references “sex”, “gender identity”, “transgender”, or “non-binary” in the context of risk assessment, safeguarding, or PVG Scheme vetting.
Guidance relating to our transgender process can be found on our website at the below link: Information for transgender and non-binary disclosure applicants - mygov.scot
Any changes to PVG scheme eligibility, vetting criteria, or terminology in light of the Supreme Court ruling.
Eligibility for the PVG Scheme is not determined by sex, sex is not used for vetting purposes in matching individuals to their record and Disclosure Scotland does not provide guidance that relates to the definition of sex under the Equality Act 2010. Disclosure Scotland does not perform equality monitoring in relation to protected characteristics for disclosure applicants, including PVG scheme members.
Disclosure certificates do not include information on sex except where a conviction for a genderspecific offence is disclosed in accordance with the normal disclosure periods under the Rehabilitation of Offenders Act 1974 and the Disclosure (Scotland) Act 2020. There have been no changes to this approach, which would not be affected by the Supreme Court ruling which related to the use of “sex”, “woman” and “man” under the Equality Act 2010. Section 20 of the Gender Recognition Act 2004 legislates for criminal liability where a gender-specific offence has been committed or attempted by a person to whom a full gender recognition certificate has been issued and where their sex is that of their acquired gender per section 9 of that Act. This means a person with gender recognition can still be convicted of a gender-specific offence in their previous sex. If convicted, disclosure is made in accordance with the same legislative framework as for any other conviction.
3. Third-Sector Influence & Payments
A list of all payments made since 1 January 2022 to any of the following:
Stonewall Scotland or Stonewall UK LGBT Youth Scotland Equality Network Scottish Trans Or any other third-sector body contracted to deliver diversity, equality, inclusion, or safeguarding advice.
Please include:
Supplier name, Date and amount, Description of services delivered or purpose of the payment.
Disclosure Scotland has made no payments to the listed organisations in the specified timeframe.
4. External Audits, Benchmarking & Training
Any participation in Stonewall’s Diversity Champions programme or other third-party equality benchmarking since 2022. Training materials delivered to staff or senior leaders on sex, gender identity, or inclusion, particularly where the concept of “sex” may have been conflated with gender identity.
Disclosure Scotland holds no such records or materials. This is a formal notice under section 17(1) of FOISA that Disclosure Scotland does not have the specific 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 https://www.gov.scot/foi-responses.
Detected exemption language
Response While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemption(s) under section(s) s.29(1)(a) (policy formulation), s. 30(a)(i) (free and frank provision of advice), s.30(a)(ii) (free and frank exchange of views), s.36(1) (claim to confidentiality of communications), s.38(1)(b) (personal information) of FOISA applies to that information. Section 29: Formulation of Scottish Administration policy Section 29(1)(a) of FOISA exempts information from disclosure where disclosure would, or would be likely to, cause substantial harm to the formulation or development of Scottish Government policy. 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.