Please could you release correspondence with the government relating to plans to publish EU regulations as the new category of domestic law “Retained EU Law”, and any other information on how these are to be published so that the public can read the text of UK law after we leave the EU.
I am also interested in any correspondence relating to the compatibility or otherwise of the crown copyright license used by legislation.gov.uk and the copyright of the regulations published on eur-lex.europa.eu
Thank you for your enquiry of 17th November 2017, in which you asked for correspondence with the government relating to plans to publish EU regulations as the new category of domestic law “Retained EU Law”, information on how these are to be published and the compatibility of the crown copyright license used by legislation.gov.uk and the copyright of the regulations published on eur-lex.europa.eu.
Your request has been handled under the Freedom of Information Act (2000). The Freedom of Information Act (2000) gives you the right to know whether we hold the information you want and to have it communicated to you, subject to any exemptions which may apply.
For the purpose of clarity, The National Archives have taken ‘correspondence with the government’ to mean correspondence with other government departments.
I can confirm that The National Archives holds information relevant to both parts of your request.
However, I regret to inform you that this information is exempt from disclosure by section 35 (1) (a) of the FOI Act. Section 35 (1) (a) exempts information from disclosure if it relates to the formulation or development of government policy.
There is no requirement to demonstrate any prejudice or adverse effect when applying this exemption, nor is there a requirement to show that any harm would occur from disclosure of the information in question. However, such arguments are, of course, relevant when considering the public interest test.
Public interest test
The public interest arguments in favour of disclosure of the requested information are improved government accountability, the presumption of openness and that release may help inform public opinion and understanding of the UK government views, with regards to the publishing of EU regulations after the UK leaves the EU.
The public interest arguments in favour of withholding the requested information are the potential damage that could occur to the policymaking space (The National Archives and other relevant government departments) – in particular as this is a live policy process.
As the official publisher of UK legislation, The National Archives is committed to HM Government’s stated aim of bringing the acquis communautaire into the UK Statute Book on the date of exit from the European Union. We are exploring a number of options for meeting this challenge in consultation with the Department for Exiting the European Union and other departments in order to assist them to formulate policy. The documentation of such discussions is covered by the development of policy exemption and release of this would undermine the policy-making process and result in less robust or well-considered policies in relation to the EU (Withdrawal) Bill.
It is our opinion that these factors outweigh the arguments for disclosure of the information.