Request
Your colleague informed me this:
This is an area of policy which is being led by the Brexit Opportunities Unit (BOU) in the Department for Business, Energy and Industrial Strategy (BEIS). As the official publisher of all UK legislation, we have provided them with data relating to that legislation, including any Retained EU Law (REUL), which we have published under the duties set out in the European Union (Withdrawal) Act 2018, Schedule 5. BOU are using this information to refine the list of REUL on the official REUL dashboard. Any enquiries about the ongoing work to identify and analyse REUL should be made to BEIS –
https://www.gov.uk/guidance/contact-beis
I will contact BEIS separately but in the meantime would be grateful for details of all legislation that you have provided the BOU / BEIS as part of the data mentioned above and which was missing from the dashboard of EU retained law prior to September. Clearly, the National Archives has information of relevance here, even if it is not the complete list of 1400 missing pieces of legislation.
Outcome
Information withheld.
Response
I can confirm that The National Archives holds some information relevant to your request.
Unfortunately, we are unable to provide you with this information. Some information is not held, and information that is held is exempt under section 35(1)(a) of the Freedom of Information Act, which exempts information if it relates to the formulation or development of Government policy.
For further information about why this exemption has been applied, please see the explanatory annex at the end of this email.
As the official publisher of UK legislation (including Retained EU Law), The National Archives holds data on all legislation published on legislation.gov.uk. As part of our efforts to provide assistance to colleagues across government, we have provided this data to assist in narrowing the search for legislation that might be impacted by the Retained EU Law Bill. For example, by excluding any piece of legislation that we know is not in force. The National Archives’ role is to provide information to Government to enable their policy decisions, but is not involved in deciding either BOU’s policy concerning Retained EU Law, or what legislation should be included on the dashboard, and therefore we do not hold information relating to this. We recommend that you direct any such request to BEIS:
https://www.gov.uk/guidance/contact-beis
We can confirm that The National Archives has provided the BOU and colleagues across government lists of relevant legislation. This information is exempt under section 35(1)(a), which exempts information relating to the formulation or development of Government policy. Although The National Archives is not involved in the formulation of policy, the data provided by The National Archives clearly relates to the formulation of policy by Central Government. This is an ongoing issue and the formulation of the relevant policy has not yet been finalised. We have considered a public interest test in withholding this information. Further details concerning this exemption and the public interest test can be seen in the explanatory annex at the end of this email.
Explanatory Annex
Exemptions applied:
Section 35(1)(a): Formulation of Government Policy
This is a class-based exemption, and 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 test 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 removal of former-EU regulations from UK law.
The public interest arguments in favour of withholding the requested information are the potential damage that could occur to the policymaking space. This is particularly strong as this is a live policy process in which Government policy has not been finalised.
As the official publisher of UK legislation, The National Archives is committed to providing relevant data to colleagues across Government, in order to assist them with the formulation of policy in relation to Retained EU Law. Release of the data we have provided Central Government would undermine their policy-making process and result in less robust or well-considered policies.
It is our opinion that these factors outweigh the arguments for disclosure of the information.
For further information on the section 35 exemption, please see the following guidance issued by the Information Commissioner’s Office: