Direct Communications Unit

2 Marsham Street, London SW1P 4DF

Switchboard 020 7035 4848 Fax: 020 7035 4745 Textphone: 020 7035 4742

E-mail: [Home Office request email] Website: www.homeoffice.gov.uk

[FOI #13279 email]

Mr P John

Reference: T9854/9

Dear Mr John,

Thank you for your e-mail of 13/06/2009 in which you ask whether the Government has responded to the European Commission Formal Notice (64/08/INSO) and, if so, to identify the Government Department responsible for submitting the response.

You also asked for

a) disclosure of that response,

b) disclosure of all relevant correspondence between the Home Office and the European Commission concerning the same matter, and,

c) disclosure of all relevant correspondence between the Home Office and other UK government departments contributing to the response.

I am writing to you to provide the information that can be disclosed to you today, and to outline where we are not in a position to disclose information or confirm its existence and inform you of the reason for that non disclosure.

I can confirm that the UK Government has submitted a response to the European Commission. The lead department for the response was the Home Office. However, as always with cross departmental subjects, consultation with other Government departments occurred. The Home Office and the Department for Business Innovation and Skills (formerly BERR), the Ministry of Justice and the Cabinet Office agreed the response to the European Commission. The Home Office will provide no further details about those meetings.

While the Home Office does therefore hold information that falls within the parameters of your request, I consider that we are not obliged to disclose any of that information to you. After careful consideration I have decided that this information is exempt from disclosure by virtue of section 35 (formulation of Government policy) and section 27 (international relations) of the Freedom of Information Act. Further information about these exemptions to the Freedom of Information Act and how they have been applied to your request is contained in an annex to this letter.

Andrew Taylor

Annex

Withholding information under Section 35(3) - Formulation of government policy.

Section 35 of the Freedom of Information Act provides that:

(1) Information held by a government department or by the National Assembly for Wales is exempt information if it relates to-

(a) the formulation or development of government policy,

(b) Ministerial communications,

(c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or

(d) the operation of any Ministerial private office.

[(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).

We believe that any information falling within the scope of your request, would, if held, be exempt under section 35(1) above.

Disclosure of the information falling within this section would compromise the Government's ability to discuss and formulate policy options in private and would demonstrate the extent to which a particular department has, for example, contributed to the response coordinated by the Home Office. In particular, the disclosure of interdepartmental considerations and the specific details of any information that has been passed to the Home Office by other government departments for the purpose of formulating public policy necessary to respond to the EU commission letter could deter the proper and candid assessment of policy options and may undermine the collective responsibility of the Government.. It is important for policy formulation for the Government to be able to consider and discuss a variety of options in a private space. To reveal this information would reveal information about the policy formulation process and optional responses under consideration. Those involved in policy formulation would be likely to be less candid with their views and unlikely to propose new and challenging ideas if they thought that they would be released prematurely. We have therefore concluded that the public interest lies in withholding the information falling under this section.

Withholding information under Section 27 - International relations

Section 27 of the Freedom of Information Act provides that:

(1) Information is exempt information if its disclosure would, or would be likely to, prejudice -

(a) relations between the United Kingdom and any other state,

(b) relations between the United Kingdom and any international organisation or international court,

(c) the interests of the United Kingdom abroad, or

(d) the promotion or protection by the United Kingdom of its interests abroad.

(2) Information is also exempt information if it is confidential information obtained from a state other than the United Kingdom or from an international organisation or international court.

(3) For the purposes of this section, any information obtained from a state, organisation or court is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the state, organisation or court to expect that it will be so held.

Some of the information requested relates to confidential correspondence covered by section 27(2) between the Home Office and the European Commission about the infringement proceedings. Whilst the existence of that correspondence is in the public domain the content of the correspondence has not been disclosed. This has enabled a more open exchange of views to take place in an environment that allows for a fuller consideration of the issues than would be the case otherwise.

Disclosure of this information would compromise the Government's ability to present its position to the European Commission. Similarly, disclosure of the Commissions letters would risk constraining their open dialogue with the UK Government and would be likely to provoke a negative reaction that could damage the UK's relations with the Commission which in turn could impact on the future conduct of the infraction proceedings and/ the UK's ability to protect and promote its interests before the Commission more generally. We have therefore concluded that the public interest lies in withholding the information falling under this section.