1. FOI and the Irish border issue

    At the time of writing, a No Deal Brexit seems ever more likely. What exactly will that mean for the UK?

    Attempts to answer this question have filled many column inches, hours of broadcast and endless tweets. There is certainly no lack of opinions.

    But opinions are best based on facts, and it was in this spirit that WhatDoTheyKnow user Jon Rush set out to request vital information about the key Brexit sticking point, and the main reason that a deal is so hard to agree — the Irish border.

    Brexit and the border

    As Jon explains, “Brexit creates serious problems for the current arrangements between Northern Ireland and the Republic of Ireland under the Good Friday Agreement  because they depend heavily on both the UK and RoI being in the EU”.

    He wanted to gain access to the results of a mapping exercise, referred to in a joint report from the EU and UK negotiators but not available to the public at that time, which assessed the level to which co-operation between the North and the South depends on the EU frameworks currently in place.

    Crucial information, you might think, for the general public who will be so affected at every level by whatever type of Brexit we enter into. Jon certainly thought so — but getting hold of it would set him on a long journey.

    A hard-won result

    Jon’s initial request, to the department for Exiting the EU (DEXEU) was in December 2017. You can follow its long and complicated journey on that page, thanks to Jon’s detailed annotations.

    FOI is one of the few tools that individuals can use to hold government to account and it’s important to use it — otherwise government will never take transparency seriously.

    Simultaneously he was requesting the same information via our partner AccessInfo’s site, AskTheEU.com, which covers EU authorities — and meanwhile, MPs in the UK’s Exiting the EU Select Committee requested the same information on numerous occasions throughout 2018, but were repeatedly rebuffed by government.

    Pursuing his right to information would take Jon via the ICO, the European Ombudsman and to the brink of a tribunal, but in the end, the report was indeed released into the public domain.

    What was revealed

    What did it tell us?

    “It contains a description of each area relevant to North-South cooperation under the Good Friday Agreement together with an assessment of how far it is underpinned by EU legal and policy frameworks.

    “The focus in the media has tended to be on trade/customs arrangements, but if you go through the mapping exercise, you find that many other areas of cooperation are underpinned by the EU membership, including transport links, water, waste management, energy, Irish language broadcasting, mobile roaming, invasive species, disease control and cross-border police cooperation.

    “Overall, 96 out of 142 different areas covered by the mapping exercise were found to be supported by EU legal or policy frameworks (with well over a third being “directly underpinned or linked”, ie EU membership is particularly significant).

    “This shows that any workable solution is likely to involve the UK committing to quite a close relationship with the EU, at least in the areas identified as crucial to North-South cooperation”.

    Approaching the UK border on Newtown Road for J0719 The houses beyond the sheugh which here marks the Border are in Co Armagh. The gate in the foreground are those of disused ROI Border facilities. The road sign is a reminder of the Republic's 80kmph speed limit on back roads.

    Disused ROI border facilities in Co Armagh. Image by Eric Jones (CC by-sa/2.0)

    A lack of transparency

    The release of this information was a positive result — but Jon believes that the government has been far from open during the whole Brexit process.

    “To be properly informed about Brexit, we need access to information which is often available only from government. It would be very difficult for an organisation outside government to produce something like the mapping exercise because it requires input from numerous experts across different areas and in some cases, access to information that only government is likely to have.

    “Government is therefore uniquely well placed to provide this information – but if government refuses to share it, it’s impossible to get the full picture.

    “In my view, the government’s approach to its own documents concerning Brexit has been to release as little as humanly possible, arguing that disclosure would undermine its negotiating position with the EU.

    “I accept that occasionally, information may need to be withheld for this reason. But it is equally if not more important that people can understand what Brexit will mean for them —  and I don’t think the government has paid anywhere near enough attention to that issue”.

    Evading scrutiny

    This was not Jon’s first experience using FOI: in fact, he had recently exercised his rights to information on another Brexit matter.

    I asked DEXEU for details of the scope and timetable of their consultation on leaving the EU. This was after David Davis (who was then Secretary of State for Exiting the EU) had told Parliament in September 2016 that the government would be consulting widely on the options for leaving the EU.

    WhatDoTheyKnow.com has made the process quite easy to initiate and it also means that others who might be interested in the same information can find your request.

    “By late October, nothing had been published, so I made an FOI request through WhatDoTheyKnow.

    “Initially, DEXEU told me it had this information but refused my request, saying that it planned to publish the information at a later date. I didn’t see why the information couldn’t be published sooner and complained to the ICO.

    “Their investigation showed that DEXEU did not have a formal plan or any formal process for the consultation — which explained their somewhat evasive response.

    “DEXEU should probably have told me that it didn’t hold the information I had requested – but to do so would have involved effectively admitting that it didn’t have a plan or any formal process for consultation. You can make up your own mind by reading what the ICO had to say here”.

    Pursuing a refused response

    But back to the Irish border request. When Jon didn’t receive a response from DEXEU, and after requesting a similarly fruitless internal review, he took the next step and referred the matter to the ICO. They ruled against disclosure in a decision that Jon believes was ill-founded:

    “The ICO decision was based on section 35 of the FOI Act, which relates to information produced for the purposes of policy formulation.

    To be properly informed about Brexit, we need access to information which is often available only from government.

    “It is certainly true that the mapping exercise was produced to inform the government’s thinking about Brexit and Northern Ireland. However, it was a summary of the current arrangements, not a discussion of what the future policy options should be; as such, it was essentially background information, which is usually regarded as less sensitive. Section 35(4) makes it clear that there is a particular public interest in the disclosure of background of information – and case law makes it clear that such disclosure can take place before the final policy has been formulated, as I was requesting here.

    “The ICO also argued that disclosure of the mapping exercise would have a “negative effect on discussions” with the EU and “create a distraction to discussions” — but its decision did not explain how this would occur, especially given that the mapping exercise had been shared with the EU.

    “When I put these points to the ICO as part of my appeal to the tribunal, it accepted that the mapping exercise was background information but argued that it should be treated in the same way as discussion of policy options. It was unable or unwilling to provide any further explanation of the supposed negative effects of disclosure and suggested that this was a matter for DEXEU to explain. I was (and remain) very concerned by this because the ICO is supposed to be an independent regulator; it should not simply be taking what government says at face value but should be questioning it and satisfying itself that what government says is actually correct”.

    And so Jon referred the matter to tribunal.

    But in June of this year, two of the key documents he was requesting were finally  released by the government, and he decided to drop his appeal to tribunal, for reasons which you can read in his annotation of the time.

    Motivation

    While many WhatDoTheyKnow users are determined and driven, it’s also true that others would be easily defeated by an initial refusal, not to mention the further rulings. So what gave Jon the will and tenacity to carry on?

    I would encourage people to use FOI … if you are prepared to persevere and be patient, you can get what you want.

    “I knew that appealing to the tribunal would involve quite a lot of time and effort on my part, but I wasn’t prepared to just let this go for two reasons. Firstly, FOI depends on having an effective regulator which is prepared to question government robustly — and if people like me just shrug our shoulders when that doesn’t seem to have happened, then nothing will ever improve.

    “Secondly, Brexit is going to take many years to sort out and there will be many more occasions where people want to use FOI to get information out of government; unless challenged, government will just continue to refuse to disclose information whenever it suits it to do so.

    “Appealing to the tribunal was a new experience for me. I am a lawyer by profession, which probably helped, but I am not an expert in FOI, nor am I a litigator — and I did feel at times that my lack of familiarity with those areas was a handicap. So I have a lot of respect for people who are not lawyers and take cases to the tribunal on their own.

    “I would encourage people to use FOI and I think that what happened with this request shows that, if you are prepared to persevere and be patient, you can get what you want — even in a situation like this where MPs had asked repeatedly for exactly the same information and hadn’t received it.

    “FOI is one of the few tools that individuals can use to hold government to account and it’s important to use it — otherwise government will never take transparency seriously. WhatDoTheyKnow.com has made the process quite easy to initiate and it also means that others who might be interested in the same information can find your request.”

    Jon is also planning to submit a complaint to the ICO about its handling of this case, including the time taken to deal with it:

    “Although it was expedited, it still took over six months, whereas my complaint to the European Ombudsman (which concerned essentially the same material) was dealt with in about half that time.”

    He intends to post a link to the complaint in a further annotation on the FOI request page on WhatDoTheyKnow – so watch this space!

    Many thanks to Jon for taking the time to talk to us about his long and involved pursuit of information, which despite the delays will still help to inform the UK public at this critical time in our country’s history.


    Top image: the Irish border by Andrein (CC by-sa/3.0)