Chamber and committees

On 26 April the Scottish Information Commissioner issued a decision notice (048/2022) requiring the disclosure of certain information about legal advice on the topic of a second independence referendum. The information had been withheld by the Scottish Government in response to a Freedom of Information request as it considered that the Government should have been able to receive the advice in confidence under “legal professional privilege”. The Commissioner, in responding to an appeal from the requester, took a different view - that considerations favouring release in this case outweighed those for maintaining legal professional privilege.

The Scottish Government has considered the Commissioner’s decision carefully.

There is a longstanding convention, observed by Scottish, UK and other governments, that government does not disclose legal advice except in exceptional circumstances. This convention, which is reflected in the Scottish Ministerial Code, is intended to ensure that full and frank legal advice can be taken by governments, just as other organisations and individuals can take legal advice in confidence and subject to legal professional privilege.

The convention is also reflected in the Freedom of Information (Scotland) Act 2002, section 36 of which makes such information exempt from release to the extent that the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption. It is on the applicability of this section of the FOI legislation that the Commissioner has come to a different view from the Scottish Government.

The Scottish Government considers that the convention on legal advice is important for ensuring good government. It disagrees strongly with the Commissioner’s reasoning in his decision and considers that there are good grounds for a successful appeal to the Court of Session to challenge the Commissioner’s ruling.

However, we have also taken account of the fact that the material covered by this Decision dates from 2020 and relates to proposed government actions that have since been taken forward and on which the legal position can therefore already be assumed. The Government has therefore concluded, on the particular circumstances of this case only, that the time and expense required for an appeal would not be merited, and that it will release and publish the information concerned.

It should be stressed, however, that the Scottish Government’s publication of the material in this case does not set any precedent for its position on releasing any other information that is subject to legal professional privilege, including in response to any other Freedom of Information request. Nor does the Information Commissioner Decision represent a binding legal precedent. The Government will therefore continue to apply the relevant exemptions, in line with the public interest test, as set out in the Freedom of Information (Scotland) Act 2002 and to follow the Scottish Ministerial Code in relation to legal advice, including in relation to material related to a referendum. The Government also reserves the right to appeal future Information Commissioner decisions to the Court of Session if it considers that appropriate in the circumstances.

The Transvaginal Mesh Removal (Cost Reimbursement) (Scotland) Act 2022 (the 2022 Act) came fully into force on 3 May 2022. The 2022 Act gives powers to Scottish Ministers to make a scheme to reimburse women for the costs incurred in connection with qualifying mesh removal surgery.

The Transvaginal Mesh Removal Reimbursement Scheme 2022 has now been laid before Parliament – laying number SG/2022/87. The scheme will open for applications on 6 June 2022 and will remain open for a period of 18 months.

Reimbursement will mean that those women who previously felt they had no other option but to have mesh removal surgery out with NHS Scotland will no longer be at a financial disadvantage because of that choice. Women will be able to apply for reimbursement of the costs of surgery, and associated expenses, for themselves and one person who travelled with them. It should be noted that anyone who is eligible to apply and has previously made a successful application to the Mesh Fund will not be excluded from applying for reimbursement and any previous payment from the Mesh Fund will not be deducted. The Mesh Fund will close to new applications on 31 May 2022.

NHS National Services Scotland (NSS) are the administrators of the Scheme and application forms and further information on how to apply will be available on the mesh pages of their website Mesh Scheme | National Services Scotland (nhs.scot) .

The cut-off date, by which surgery has to have been arranged in order to be eligible for reimbursement, is specified in the Scheme and has been set at 3 June 2022. This will ensure that any woman who has made their own arrangements for surgery on or before this date will not be penalised for doing so and gives those in the process of making arrangements time to finalise them before the scheme opens. Section 1(3)(c) of the 2022 Act provides that the cut-off date could not be before the date of Royal Assent, which was 3 March 2022.

To be clear, anyone who wishes to have mesh removal surgery outside of NHS Scotland after 3 June 2022 should seek to do so through the official referral process as they will not be reimbursed if they make their own arrangements after that date.

It is expected that anyone seeking mesh removal after this date discuss their case with local clinicians within their own Health Board. If considered appropriate at that stage, they would then be referred to the Complex Pelvic Mesh Removal Service in NHS Greater Glasgow and Clyde for consideration by a full multi-disciplinary team (MDT). If, after careful consideration by both the MDT and the patient, it is agreed that surgery is appropriate, the patient can choose to be treated by the service already available in NHS Scotland or to be referred to a specialist NHS centre in England or to an independent provider. Each of these options will be available free of charge. I would encourage anyone who wishes referral to one of these services to make their wishes known to their clinical team, if they have not already done so.

I can confirm that my officials and I met with members of the Life After Essure support group on 31 March. I was grateful for the opportunity to hear the experiences of the women first hand, and found the meeting very helpful.

What became clear was the need for a consistent approach for any women experiencing complications as a result of this device. As such, I can confirm that I have agreed to write to GPs and other relevant clinicians in order to highlight the concerns that have been raised. In addition, I have also undertaken to give consideration to what further action can be taken to ensure that there is increased awareness amongst both patients and clinicians.

I will be happy to provide further updates in due course.

The Government’s response to the Working Group’s report will be published later today.

Our response sets out the immediate action the government will undertake in advance of consulting on draft legislation.

At present, in Scotland a new constable will start on a salary of £26,737, and we understand that in England and Wales the lowest starting salary for a graduate is £21,654, and £19,164 for a PCDA (Police Constable Degree Apprentice).

More information on Police Officer salaries in Scotland can be found on the Police Scotland website using the following link: Pay and Grading Structure - Police Scotland