Dear NHS Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group,

I am requesting a copy of the legal advice provided Bevan Brittan dated on or around 26 March 2020 in relation to the Equality Impact Assessment of the "Supporting Trans People Toolkit". This legal advice has been used to formulate public policy in an area of intense public interest, which will affect the rights of many service users.

I understand the legal advice was previously withheld on the grounds it was exempt under section 42. However section 42 is subject to the "public interest test", which was not applied. I respectfully request that the "public interest test" is applied and the legal advice is released.

Yours faithfully,

R Bowyer

FOI (NHS BRISTOL, NORTH SOMERSET AND SOUTH GLOUCESTERSHIRE CCG), NHS Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group

1 Attachment

Good afternoon,

 

Thank you for your request for information, which we received on 14^th
December 2020, regarding documents and information relating to EIA and
Trans Toolkit legal advice.

 

I am acknowledging your request on behalf of Bristol, North Somerset and
south Gloucestershire Clinical Commissioning Group (BNSSG CCG). We will be
dealing with your request for information in accordance with the Freedom
of Information Act 2000.

 

Under the Act we have 20 working days to respond to your request and we
expect to be in a position to reply to you by 14^th January 2021.

 

Please note: due to the current situation with Covid-19 we may still be
experiencing delays in processing requests for information. This could be
due to staff absence and/or ability to access the information, however we
will endeavor to respond to your request within the statutory 20 days.

 

Dealing with your request:

In normal circumstances we should be able to (a) confirm or deny that we
hold this information and (b) if we hold it, send it to you within the
statutory timescale of 20 working days. You should note however that the
Act defines a number of exemptions which may prevent us complying with
either of these duties. We will explain if this is the case and if we
apply the 'public interest test' to our decision.

If you have any queries about this e-mail, please contact me quoting the
reference number above in any future communications.

 

Further information about the Freedom of Information Act and the
Environmental Information Regulations may be found on the Information
Commissioner’s website at [1]https://ico.org.uk/.

 

Yours faithfully,

 

Freedom of Information Team

NHS Bristol, North Somerset & South Gloucestershire CCG

[2]www.bnssgccg.nhs.uk

 

 

Please be aware that all emails received and sent by this organisation are
subject to the Freedom of Information Act (2000) and may be disclosed to a
third party. If you believe you have been sent this message in error,
please inform the sender and delete the message and any attachments as
soon as possible. All messages sent by this organisation are checked for
viruses but this does not, and cannot, guarantee that a virus has not been
transmitted. 

 

show quoted sections

FOI (NHS BRISTOL, NORTH SOMERSET AND SOUTH GLOUCESTERSHIRE CCG), NHS Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group

2 Attachments

Good afternoon,

 

Thank you for your request for information, which we received on 14^th
December 2020, regarding documents and information relating to EIA and
Trans Toolkit legal advice.

 

Under the Act we have 20 working days to respond to your request. However,
when a qualified exemption applies to the information and the public
interest test is engaged, the Act allows time for the response to be
responded to, up to an additional 20 working days. We do try to make all
decisions within 20 working days, including cases where we need to
consider where the public interest lies in respect to a request for
information. In this case, however, we have not yet reached a decision on
where the balance of public interest lies.

 

In your case we estimate it will take an additional 20 days to make a
decision on where the balance of the public interest lies. Therefore, we
expect to be in a position to provide you with a response by 11^th
February 2021.

 

If you have any queries about this e-mail, please contact me quoting the
reference number above in any future communications.

 

Further information about the Freedom of Information Act and the
Environmental Information Regulations may be found on the Information
Commissioner’s website at [1]https://ico.org.uk/

 

Yours sincerely,

 

Freedom of Information Team

NHS Bristol, North Somerset & South Gloucestershire CCG

[2]www.bnssgccg.nhs.uk

 

 

Please be aware that all emails received and sent by this organisation are
subject to the Freedom of Information Act (2000) and may be disclosed to a
third party. If you believe you have been sent this message in error,
please inform the sender and delete the message and any attachments as
soon as possible. All messages sent by this organisation are checked for
viruses but this does not, and cannot, guarantee that a virus has not been
transmitted. 

show quoted sections

FOI (NHS BRISTOL, NORTH SOMERSET AND SOUTH GLOUCESTERSHIRE CCG), NHS Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group

3 Attachments

Good afternoon,

 

Thank you for your request for information, which we received on 14^th
December 2020, regarding documents and information relating to EIA and
Trans Toolkit legal advice.

 

Under section 1 (1) (a) and (b) of the Freedom of Information Act 2000, I
can confirm that the CCG does/does not hold some of/the information
requested.  Please find attached the response to your request, which is
sent on behalf of Bristol, North Somerset and South Gloucestershire
Clinical Commissioning Group. Your request for information has been dealt
with in accordance with the Freedom of Information Act (2000) and we hope
that you find this response helpful.

 

The information supplied to you continues to be protected by copyright. 
You are free to use it for your own purposes, including for private study
and non-commercial research, and for any other purpose authorised by an
exception in current copyright law.  Documents (except photographs) can
also be used in the UK without requiring permission for the purposes of
news reporting.  Any other reuse, for example, commercial publication,
would require the permission of the copyright holder. 

 

If you are not satisfied with the way in which we have dealt with your
request for information, then in accordance with the Act you may ask us to
conduct a review.  Internal review requests should be submitted within two
months of the date of receipt of the response to your original request and
sent to [1][NHS BNSSG CCG request email].

 

If following an internal review you remain unhappy you have the right to
apply directly to the Information Commissioner for a decision. Generally,
the Information Commissioner's Office cannot make a decision unless you
have already exhausted NHS South, Central and West Commissioning Support
Unit's internal review procedure.  The Information Commissioner can be
contacted at:  The Information Commissioner's Office, Wycliffe House,
Wycliffe Lane, Wilmslow, Cheshire, SK6 5AF.

 

Further information about the Freedom of Information Act can be sourced on
the Information Commissioner's website: [2]http://www.ico.gov.uk/.

 

If you have any queries about this e-mail, please contact the FOI Team on
[3][NHS BNSSG CCG request email], quoting the reference number in the subject line.

 

Yours sincerely,

 

Freedom of Information Team

NHS Bristol, North Somerset & South Gloucestershire CCG

[4]www.bnssgccg.nhs.uk

 

 

Please be aware that all emails received and sent by this organisation are
subject to the Freedom of Information Act (2000) and may be disclosed to a
third party. If you believe you have been sent this message in error,
please inform the sender and delete the message and any attachments as
soon as possible. All messages sent by this organisation are checked for
viruses but this does not, and cannot, guarantee that a virus has not been
transmitted. 

 

show quoted sections

Dear NHS Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of NHS Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group's handling of my FOI request 'EIA and Trans Toolkit legal advice'.

I understand that my request for a copy of the legal advice has been turned down under Section 42 of the Freedom of Information Act. However, I believe that in this circumstance it is the public interest to release the legal advice.

I would like to clarify that my request is only for the final formal written legal advice provided by Bevan Britten. I do not seek draft copies of the legal advice or memos of any meeting between the CCG and Bevan Britten.

I fully accept the need to encourage public sector bodies to take legal advice to ensure they meet their legal obligations. However, the legal advice does not relate to any individual or any wrong doing. Also, the legal advice was obtained prior to putting a new policy in place rather afterwards. The CCG have followed the legal advice in good faith and have amended the policy in line with the legal advice. Given the CCG have acted in good faith throughout, it is difficult to see how the CCG could suffer any detriment or embarrassment or liability if the legal advice was released. As a result, it is hard to see how releasing the legal advice in this instance would have any chilling effect on the CCG’s willingness to obtain legal advice in the future.

The case of Mersey Tunnel User’s Association (MTUA) v Information Commissioner and Merseytravel (EA/2007/0052, 15 February 2008) notes “It is hard to see how an officer could be criticised, even if the weak points are later revealed, for seeking advice to help put them right, to ensure, as Merseytravel put it, “that those authorities act within the law”. We discount the possibility that a public official might seek advice to help his authority act outside the law; and if that were to occur, it would be hard to see the public interest in keeping such advice confidential. Nor can we see that any professional lawyer would temper their advice for fear of later publication: that would again be self defeating, to both client and lawyer, to say nothing of the lawyer’s professional obligations.” (para. 42)

Transgender people are a sexual minority whose human rights are protected under UK and international law. The amendments to the Trans Toolkit that were made on account of the legal advice are likely to have a negative effect on the human rights of trans people. Given the human rights context, there is an overwhelming public interest in ensuring the legal advice is accurate.

However, based on the changes to the Trans Toolkit, there is good reason to believe the legal advice or its interpretation is incorrect. For example, one sentence in the Equality Impact Assessment (protected characteristic Religion and Belief) states “Because of this, where mixed wards are concerned there is potential negative impact. If this is the case the clinical team must take this into account, but this should be balanced against clinical priorities and the rights of the transgender person, as both characteristics are equally protected under the law.” I am not aware of any legal authorities (statutory or case law) that state, when deciding to discriminate against transgender people by denying them access to a service, that the views of religious people who wish to exclude a transgender person from using the service have the same legal protection as the right of a transgender person to use the service.

The principle of transparency in decision making demands the release of the full legal advice so it is possible to review the accuracy of the legal advice and whether the amended Trans Toolkit requires unnecessary discrimination against transgender people.

Section 42 is a qualified exemption rather than an absolute exemption, and given the lack of harm to the CCG in releasing the legal advice and the potential impact to the human rights of transgender people leading from this advice, this must surely be a situation where it is in the public interest to release the advice.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/e...

Yours faithfully,

R Bowyer

FOI (NHS BRISTOL, NORTH SOMERSET AND SOUTH GLOUCESTERSHIRE CCG), NHS Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group

1 Attachment

Good morning,

 

Thank you for your email, which we received on 24^th February, in which
you asked for an internal review into the way Bristol, North Somerset and
South Gloucestershire CCG handled your request for information under
reference:

 

FOI 2021 171 - EIA and Trans Toolkit Legal Advice

 

In most cases we expect to be in a position to provide a response within
20 working days, or 40 in exceptional circumstances.

 

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision.  Generally, the Information Commissioner's Office cannot make a
decision unless you have already exhausted Bristol, North Somerset and
South Gloucestershire CCG’s internal review procedure.  The Information
Commissioner can be contacted at:  The Information Commissioner's Office,
Wycliffe House, Wycliffe Lane, Wilmslow, Cheshire, SK6 5AF.

 

Further information about the Freedom of Information Act can be sourced on
the Information Commissioner's website: [1]http://www.ico.gov.uk/.

 

Yours faithfully,

 

Freedom of Information Team

NHS Bristol, North Somerset & South Gloucestershire CCG

[2]www.bnssgccg.nhs.uk

 

 

Please be aware that all emails received and sent by this organisation are
subject to the Freedom of Information Act (2000) and may be disclosed to a
third party. If you believe you have been sent this message in error,
please inform the sender and delete the message and any attachments as
soon as possible. All messages sent by this organisation are checked for
viruses but this does not, and cannot, guarantee that a virus has not been
transmitted. 

show quoted sections

FOI (NHS BRISTOL, NORTH SOMERSET AND SOUTH GLOUCESTERSHIRE CCG), NHS Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group

3 Attachments

Good afternoon,

 

Thank you for your email, which we received on 24^th February, in which
you asked for an internal review into the way Bristol, North Somerset and
South Gloucestershire CCG handled your request for information under
reference: FOI 2021 171

 

Please find attached our response to the internal review.

 

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision.  Generally, the Information Commissioner's Office cannot make a
decision unless you have already exhausted Bristol, North Somerset and
South Gloucestershire CCG’s internal review procedure.  The Information
Commissioner can be contacted at:  The Information Commissioner's Office,
Wycliffe House, Wycliffe Lane, Wilmslow, Cheshire, SK6 5AF.

 

Further information about the Freedom of Information Act can be sourced on
the Information Commissioner's website: [1]http://www.ico.gov.uk/

 

Yours faithfully,

Freedom of Information Team

NHS Bristol, North Somerset & South Gloucestershire CCG

[2]www.bnssgccg.nhs.uk

[3]cid:image001.png@01D52821.BE3B3240 

Please be aware that all emails received and sent by this organisation are
subject to the Freedom of Information Act (2000) and may be disclosed to a
third party. If you believe you have been sent this message in error,
please inform the sender and delete the message and any attachments as
soon as possible. All messages sent by this organisation are checked for
viruses but this does not, and cannot, guarantee that a virus has not been
transmitted. 

 

show quoted sections