Timetable and scope of consultation on exiting the EU
Dear Department for Exiting the European Union,
FREEDOM OF INFORMATION ACT REQUEST
In his statement to Parliament on 5 September, the Secretary of State for Exiting the European Union promised wide-ranging consultations on the government's plans for exiting the EU. He said:
"In the weeks ahead, we will speak to as many other firms, organisations and bodies as possible [....] to establish the priority issues and opportunities for the whole of the UK. As part of this exercise, I can announce that we will hold roundtables with stakeholders in a series of sectors, to ensure all views can be reflected in our analysis of the options for the UK’s withdrawal from the European Union."
It is now over a month since the statement to Parliament but I can find no details on the DEXEU site of the planned timetable and scope of these promised consultations, nor any details of how persons likely to be affected by the decision to leave the EU can respond. There is also no indication of when such persons need to respond by or who they should respond to. I am therefore writing to request the following information:
1. What consultations is the government conducting or planning to conduct regarding its plans to leave the EU? In particular who is being consulted and what is the scope of those consultations?
2. When are those consultations being held, what is the deadline for interested parties to respond and who should such parties address their responses to?
I am aware that the Freedom of Information Act contains various exemptions allowing the government to refuse to supply information. However, consultation processes cannot possibly be effective unless those who may be affected know in advance (i) that the consultation process is actually happening; (ii) exactly what its scope is; and (iii) when they need to respond by. I can therefore see no conceivable reason why this information should not be made available immediately. The current lack of transparency is in marked contrast to the government's normal approach to consultation in other areas e.g. when consulting on new legislation.
I am also aware that the timetable for responding to FOI requests is 20 working days. However, given the urgent and momentous nature of the matter on which the government is consulting and the fact that it is now a month since the statement to Parliament, I would suggest that a speedier response would be appropriate in this case.
Yours faithfully,
Jonathan Rush
Dear Mr Rush
Thank you for your request under the Freedom of Information Act 2000, our
reference DEX000054. Please find attached our response.
Kind regards
Freedom of Information Team
Correspondence Unit
[1]DfEEU_CYAN_SML_AW.png [2]line.png 9 Downing Street | London | SW1A 2AG
E: [3][DEEU request email]
You can follow DExEU on Twitter:
@DExEUgov
Dear Department for Exiting the European Union,
Please pass this on to the person who conducts Freedom of Information reviews.
I refer to your letter dated 1 November 2016, reference DEX000054. I am writing to request an internal review of Department for Exiting the European Union's handling of my FOI request 'Timetable and scope of consultation on exiting the EU', in particular your decision to withhold the information I have requested (other than ”who should interested parties address their responses to?”).
You cite section 22(1) of the Freedom of Information Act, relating to information intended for future publication. However, such information can only be withheld where it is “reasonable in all the circumstances that the information should be withheld until the [intended future publication date].” You do not explain why you consider it to be reasonable to do so. This makes it difficult to challenge your decision, as it is a decision with no reasoning attached.
As I pointed out in my request, a consultation cannot be effective unless those who may be affected know in advance (i) that the consultation process is actually happening; (ii) exactly what its scope is; and (iii) when they need to respond by. To the government’s credit, it normally makes this information available promptly when consulting on issues such as changes to legislation, including many pieces of legislation which are of far less import than the UK’s exit from the EU. Typically, at the outset of the process, a list of questions is published so as to provide focus to the consultation and greater transparency around the issues which the government will take into account when analysing responses and deciding how best to proceed. On an issue as complex as leaving the EU, it was reasonable (following the Secretary of State's announcement to Parliament in September) to expect that DEXEU would publish a similar "scoping document." A deadline for responses is also normally set. This is likely to be particularly important for the consultation on leaving the EU because of the government’s stated aim of starting exit negotiations early next year.
In this case, however, none of these processes have been followed. In marked contrast to the more formal approach which the government normally adopts when seeking views from interested parties on matters such as new legislation, this consultation lacks both transparency and focus (because it is not clear who is being consulted and which aspects of the UK’s exit from the EU are being consulted upon at this stage). From the publicly available information, it appears to be a consultation “by invitation only,” involving only groups that the government chooses to consult (in particular, I note that the government has not formally invited views from anyone else - there is no such general invitation on the DEXEU site).
It may be that the government intends to address these deficiencies by conducting a more formal consultation at a later date - but if so, it is incumbent upon it to make it clear how it proposes to achieve this before the projected start date of exit negotiations early next year. On a matter of this importance and complexity, one would normally expect interested parties to be given a reasonably generous period to respond. If that period is likely to be curtailed, it is all the more important that interested parties are encouraged to make their views known as soon as possible.
For all the above reasons, it cannot be “reasonable in all the circumstances” to withhold the information I have requested. On the contrary, withholding the information defeats the purpose of the consultation and undermines its effectiveness as an evidence-gathering exercise.
I trust that you will reconsider your decision promptly; if you decide to maintain your refusal to refuse to disclose the requested information, I trust that this time you will explain why you consider it "reasonable in all the circumstances" to do so. At present, I am minded to appeal to the Information Commissioner if you maintain your refusal.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t...
Yours faithfully,
Jonathan Rush
Dear Mr Rush
Thank you for your request for an internal review of your request made
under the Freedom of Information Act 2000, our reference DEX000054. Please
find attached my response, with apologies for the delay.
Kind regards
Nick Short (Head of FOI DExEU)
Freedom of Information Team
Correspondence Unit
[1]DfEEU_CYAN_SML_AW.png [2]line.png 9 Downing Street | London | SW1A 2AG
E: [3][DEEU request email]
You can follow DExEU on Twitter:
@DExEUgov
Jonathan Rush left an annotation ()
Update 8.2.2017: Having got fed up with waiting for DEXEU to respond to my request for an internal review (in my view, a 3 month delay is unacceptable), I submitted a formal complaint to the ICO on 7.2.2017.
No sooner had I done that than with impeccable timing, DEXEU provided the results of its internal review on 8.2.2017 (its letter is dated 6.2 but I was only notified on 8.2; I had also checked this site on the evening of 7.2 before submitting my complaint). I will provide a further update as and when I hear from the ICO.
Jonathan Rush left an annotation ()
Update 29.5.2017 - the ICO confirmed on 17.5.2017 that it is investigating my complaint under case number FS50666921.
Jonathan Rush left an annotation ()
Update 27.8.2017 - having not heard any thing from the ICO for over 3 months, I have now asked for an explanation of the delay.
Jonathan Rush left an annotation ()
I have now had a response from the ICO, which has not upheld my complaint. The main reason for this appears to be that my question implied that DEXEU must have had some kind of plan and formal process for its consultation on Brexit - whereas in fact, it appears that DEXEU did not have a proper plan or a formal process for consultation (and still doesn't). In summarising it like that, I am no doubt simplifying matters somewhat, but you can make up your own mind by reading the full text of the ICO's conclusions below. NOTE: this is not a Decision Notice but merely an explanation of why they do not propose to proceed further with my complaint.
"The first element of your complaint is the substantive matter of the application of section 22. I will address this first before the procedural matter of the late provision of an internal review.
Section 22 Information intended for future publication
Section 22(1) states that information is exempt from disclosure if;
(a) the information is held by the public authority with a view to its
publication, by the authority or any other person, at some future date
(whether determined or not),
(b) the information was already held with a view to such publication at
the time when the request for information was made, and
(c) it is reasonable in all the circumstances that the information should
be withheld from disclosure until the date referred to in paragraph (a)
Therefore the key questions are as follows:
When you submitted the request, did DExEU intend to publish the information at some date in the future?
If so, had DExEU determined this date when the request was submitted?
In all the circumstances of the case, was it ‘reasonable’ that DExEU should withhold the information at the time of your request?
In order to correctly rely on section 22, there must have been a settled
intention to publish the requested information prior to the request being
received. DExEU has explained to the Commissioner that it was already part of the Government transparency agenda to publish the consultations which would be taking place. In the circumstances, the Commissioner accepts that this comprises a settled intention to publish relevant information prior to your request.
A specific date was not determined but was intended to be a quarterly publication on the .Gov website. I understand that similar information will be published quarterly in accordance with other Government departments.
Was it ‘reasonable’ to withhold the information?
There is some overlap between the factors to consider when deciding what is reasonable, and those which are relevant to the application of the public interest test.
In this case as DExEU explained that it was already committed to publish the information as a transparency publication which is standard across Government as an accepted practice.
Although there was an intention to meet certain stakeholder groups, agreement had not been reached and in some cases stakeholders had not been approached. Consequently a settled position in respect of the points of your request did not exist. So although DExEU, at that time held information in the scope of your request in general terms, it could not answer your specific points definitively. When a settled position was achieved in terms of meetings between October – December 2016 the information was published. As such the Commissioner considers that it is a reasonable position to withhold the information which would be published when complete. The exemption is therefore engaged.
I understand your concern and assumptions following from the Secretary of State’s statement of 5 September 2016. However, I am advised that DExEU has currently no plans for formal consultation in the format inferred by your request. Stakeholder engagement with both business and civil society stakeholders will continue and will be published on the webpage:
https://www.gov.uk/government/uploads/sy...
In its submissions DExEU advised the Commissioner that at the time of your request it had not formulated plans for formal engagement in terms of formal consultations in the manner of previous Government Green Papers. I note your comment in requesting an internal review:
“It may be that the government intends to address these deficiencies by conducting a more formal consultation at a later date - but if so, it is incumbent upon it to make it clear how it proposes to achieve this before the projected start date of exit negotiations early next year.”
DExEU has advised that if it plans formal consultations at a later date it will ensure that these are published with sufficient time to facilitate the ‘widest possible engagement and response’. DExEU also reiterated its suggestion that it encourages all stakeholders, including individuals who wish to provide information to write to its correspondence address / stakeholder engagement teams at 9, Downing Street, London SW1A 2AG.
Understandably you assumed that the consultation process would follow previous patterns in government, however, there does not currently appear to be a formal consultation process in place. I understand your concerns in terms of how such formal consultation will be achieved, however, as I am sure you are aware, this is not within the Commissioner’s remit to consider as part of her regulation of the access to recorded information legislation.
Public interest test
Section 22(1) is qualified by a public interest test considering whether in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure of the relevant information at the time of the request.
In its submissions to the Commissioner DExEU acknowledged that there is a significant public interest in understanding who it is consulting on matters of policy and in the general transparency and accountability of Government departments. It also appreciates that there is considerable public interest in the issues being addressed by DExEU and in the public being able to contribute views on the UK’s exit from the EU.
However, it argued that given the fact that there is a clear intention to regularly publish information on meetings/consultations, there is no particular public interest served in disclosing the information ahead of time. It suggests that the public interest is best served by continuing with
the planned publication in due course rather than diverting time and resources from the delivery of DExEU’s other functions. It considers that the .Gov website is the most appropriate method of delivering information on stakeholders’ engagement such that all interested parties receive the same information at the same time. DExEU also stressed that the public is able to contribute views by writing directly to DExEU as previously explained.
The Commissioner considers that the balance of the public interest in section 22 must focus on whether in the circumstances of each case it would be in the public interest for the public authority to keep to its original timetable for disclosure or whether in the circumstances of the case the public interest would warrant an earlier disclosure.
Having viewed the information held in the broad scope of your request, I note that the content does not provide a settled view and not an accurate picture of the consultations that were subsequently determined as they appear on the link provided above. The withheld information could not appropriately answer your request.
In this case, the Commissioner finds that the public interest in maintaining the exemption in section 22 outweighs that in disclosure of the information. This was because she considers that it would be of greater public benefit to ensure that the information about meetings and consultations is settled and accurately provided in a transparency publication on the .Gov website rather than information be provided which, although it may be considered to be in the broad scope of the request, does not specifically answer the questions posed in your request.
Procedural failings
There is no specific time frame given within the FOIA and therefore there can be no breach of the Act in terms of the time taken to provide an internal review. However, the Commissioner’s guidance is clear that she expects adherence to a similar time period as set out in section 10 FOIA for an initial response, that being 20 working days. DExEU’s review was provided after 78 working days which is clearly outside of the Commissioner’s guidance. This failure will be recorded and monitored. If a pattern of failings or other procedural breaches emerges the Commissioner may take further action. As DExEU is a new Department the Commissioner has not yet received a significant number of complaints to create a pattern of concerns.
It is disappointing that DExEU did not provide any consideration of ‘reasonableness’ or a balanced public interest test in its initial response. The internal review addresses the public interest and incorporates ‘reasonable’ arguments within the balancing whilst acknowledging the lack of reasoning in its initial response.
Conclusion
I understand your frustration at the consultation process underway in DExEU and consider that your comments on the operation of the process to have some merit. However, the day to day operation or organisation of the Department cannot be addressed by the Commissioner; the Parliamentary and Health Service Ombudsman (‘PHSO’) is the appropriate body to contact in this regard.
In respect of the FOI legislation DExEU has appropriately applied section 22 FOIA to your request for the reasons explained above. Notwithstanding this, I shall write to DExEU highlighting the procedural failings in its approach to handling your request."
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Jonathan Rush left an annotation ()
An update from the requester:
Emailed DEXEU on 7.12.2016 asking for update on internal review - no response received.
Emailed DEXEU on 15.1.2017 requesting a response and threatening to complain to ICO if no response by 20.1.2017.
At this point, it is looking unlikely that the information will be forthcoming before March 2017, when the government proposes to trigger Article 50 - by which time it may be too late to take meaningful action to correct what I believe are the deficiencies in the government's consultation exercise. However, at present, I am still minded to go ahead with a complaint to the ICO. This is because there is an important point of principle at stake here about the need for transparency and the value of following a formal procedure when consulting about changes of this magnitude. A decision from the ICO against DEXEU could also force the government to engage in proper, formal consultation on the detailed mechanics of leaving the EU and/or particular issues which emerge in the course of the Article 50 negotiations.