Primary and secondary legislation timescale

Summary

The requester asked for a list of primary and secondary legislation drafting requests from March 2019, including dates and departments. The Attorney General's Chambers refused to disclose the information, citing qualified exemptions related to policy formulation and legal professional privilege.

Key Facts

• The request was received on 23 March 2021 and the outcome was determined on 14 May 2021.
• The authority responded that the information is subject to qualified exemptions under sections 34 and 40 of the Freedom of Information Act 2015.
• Section 34 applies because the drafting process involves the formulation of government policy and communications between Ministers.
• Section 40 applies because the information contains confidential communications between legal advisers and clients for the purpose of legal advice.
• The authority stated that providing specific request dates would be misleading as legislation drafting is a collaborative and iterative process.

Data Disclosed

• 23 March 2021
• 14 May 2021
• 1 March 2019
• 15 April 2021
• 7 pages
• 1 document
• section 34
• section 40
• Freedom of Information Act 2015

Exemptions Cited

• Section 34 (Formulation of policy)
• Section 40 (Legal professional privilege)

Original Request

Please provide a list of all primary and secondary legislation drafting requests made to your office from 1st March 2019 to date (to include new or amendments to regulations). If possible, please also provide a date the legislation / regulation was requested, by which department, the date it was completed by your office and if possible, the date it received it's first reading in Tynwald. Thank you.

Data Tables (2)

Full Response Text

Attorney General's Chambers 2nd floor Belgravia House Circular Road, Douglas Isle of Man, IM1 1AE Telephone: (01624) 685452 E-mail: attgen@gov.im

Our ref: 1722493 15 April 2021

Dear ###

We write further to your request which was received on 23 March 2021 and which states:

"Please provide a list of all primary and secondary legislation drafting requests made to your office from 1st March 2019 to date (to include new or amendments to regulations). If possible, please also provide a date the legislation / regulation was requested, by which department, the date it was completed by your office and if possible, the date it received it's first reading in Tynwald. Thank you."

Response to your request: In order to respond in full, we have broken down your request into the following requests: (1) A list of all primary and secondary legislation drafting requests made to your office from 1st March 2019 to date (to include new or amendments to regulations) and the date it was completed (Request 1); and (2) The date it received first reading in Tynwald (Request 2) Request 1 Information held – exemptions (section 34 and 40) The Attorney General’s Chambers holds information within the terms of your request relating to drafting requests made to the Attorney General’s Chambers. However, such information is being withheld as qualified exemptions apply to all of the relevant information we hold, although they apply in different combinations to different information held. Such qualified exemptions applying to information within the scope of your request are under section 34 (formulation of policy) and section 40 (legal professional privilege) of the Freedom of Information Act 2015 (“the Act”). Qualified exemptions are subject to a public interest test: the application of these exemptions, and the Attorney General’s assessment of the public interest test are explained below. Section 34 of the Act – Formulation of policy

Whilst our aim is to provide information whenever possible, section 34 of the Act provides a qualified exemption for withholding of information that relates to (a) the formulation or development of government policy; (b) communications between Ministers (including, in particular, the proceedings of Council of Ministers or of any committee of the Council of Ministers); (c) the provision of legal advice or any request for such advice; or (d) the operation of a Ministerial private office. The formulation and development of policy continues throughout the process of preparing legislation. Legal officers in the Attorney General’s Chambers who draft legislation, and the civil servants in Departments of the Isle of Man Government who instruct them will work together to find the best way to give effect to a legislative proposal. As such, where we hold information on dates of requests made, it would be misleading to give such dates as requests for drafting instructions, since the production of legislation is instead a collaborative and iterative process. The journey of any piece of legislation may begin well in advance of contact with the Attorney General’s Chambers. The majority of instructions for legislative drafting will include or refer to communications between Ministers, and requests for the provision of legal advice (see exemption under section 40 below).
The instructions relating to government Bills and statutory documents for which the Attorney General’s Chambers received drafting instructions between 1 March 2019 and the date of your request, relate to the formulation and development of government policy and include communications between Ministers, or the provision of legal advice including requests for such advice, pursuant to section 34(1)(a), (b) and (c).
Therefore, the Attorney General is satisfied that the information we hold, whilst within the scope of your request, falls within this exemption. Section 40 – Legal professional privilege Section 40 of the Act provides an exemption for information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. Advice privilege applies in relation to confidential communications between a client and a legal adviser, made for the sole or dominant purpose of obtaining legal advice. In this case, information held contains confidential communications between the legislative drafters in the Attorney General’s Chambers and the civil servants in the government Department who instructed them for the purpose of giving and receiving legal advice. The Attorney General is satisfied that the information held, within the scope of your request, falls within this exemption. Public interest test As section 34 and section 40 exemptions are qualified exemptions, their application to information held, and the decision as to whether to disclose the information held, is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large.

In determining whether the public interest in maintaining this exemption outweighs the public interest, the Attorney General has had regard to the public interest in disclosing factual information used to provide an informed background to decision-taking. In this case and in relation to information held which is within the scope of your request, the Attorney General is satisfied and has decided that, the public interest in maintaining the exemptions outweighs the public interest in disclosing the information.
In reaching this conclusion, the Attorney General has taken into account factors in favour of disclosure of drafting requests in the public interest which are: • demonstration that policy decisions have been taken for sound reasons, and on the basis of legal advice; • the requests are within the past 2 years and the legislative measures drafted may impact upon a sufficient proportion of the population; • that the drafting requests have resulted in appropriately interpreted legislative measures and maintaining public confidence in the legislative process. However, this is balanced against factors in favour of withholding the information in the public interest. In this case there is a strong public interest in withholding the information on the following grounds: • a person seeking access to legal advice should be able to communicate freely with legal advisers in confidence, and to receive legal advice in confidence.
Whilst this would not be an ‘automatic’ withholding of information, there is a strong ‘in-built’ public interest in maintaining this confidence; • there is a public interest in ensuring the effectiveness of preparing legislation.
This process involves subjecting policy proposals to rigorous analysis, ensuring that the full implications of the proposals are understood, and exploring all of the options for giving effect to government policy which develops throughout the formulation and drafting of legislation, and continues following the introduction to Tynwald, where for example enabling legislation becomes the mechanism for introduction of secondary legislation which contain the operational mechanism for the policy introduced by the Bill; • lawyers in the Attorney General’s Chambers and the civil servants in the government Departments instructing them need to communicate freely and frankly in order to ensure that all aspects of the policy are fully explored and not be inhibited or make compromised decisions; • implementing legislation must be well thought out and legally sound; • the drafting of legislation is very much a collaborative process and candour plays a crucial part in this process which ought not to be inhibited – “frank and robust discussions in a safe space are required.”1; 1 Decision number: DN2017/0002, paragraph 57

• disclosure of advice, which may be misconstrued, or not fully informed in the context of the provision of the advice is likely to undermine the advice provided and mislead the public, potentially damaging public confidence in the legislative process and the provision of legal advice; • drafting requests sometimes do not result in an identifiable legislative measure which results from it and there may be amendments or other matters by which those requests are achieved collectively; • in disclosing legal advice which is relatively recent, this may undermine or disadvantage the instructing party to whom the privilege attaches, from establishing, making claims, ensuring adherence to its obligations or defending any legal challenge to provisions, or decisions made; • disclosure of internal papers and communications about the preparation of legislation is likely to have a highly detrimental impact upon and undermine - policy formulation, related legal advice, and drafting process. It is noted that the Information Commissioner in the Isle of Man has previously confirmed that the previous section 34(1)(b)(iii) (amended to section 34(1)(c) is “to all intents and purposes, essentially the same as section 40, “Legal professional privilege”.”2 The Information Commissioner has further set out the meaning of whether information held relates to the ‘formulation of government policy’ (within the meaning of section 34(1)) by setting out that “Legislation is the means by which ‘government policy’ becomes law.” 3 In a previous Decision Notice, the Information Commissioner was not satisfied that the legislation did relate to the making of a ‘new’ government policy due to the operative legislation being in force for over 10 years prior to the making of a request for information relating to advice upon the policy relating to that legislation.
In this instance, the request for information relates to ‘drafting requests’ within the past 2 years, and to Bills which may not yet have been introduced, or secondary legislation which may not yet have been made. Overall, the disclosure of advice, or other internal papers which are or relate to ‘drafting requests’ is likely to fundamentally undermine the confidence of communications as between the Attorney General’s Chambers and its instructing party, mislead the public as to the background to and factual basis of decision making or policy development, and undermine the legislative process. In taking these factors into account the Attorney General has determined that the factors in favour of maintaining the exemptions set out in section 34(1)(a), (b) and (c), together with section 40 of the Act, outweigh the factors in favour of disclosing the information. Request 2 Information reasonably accessible (section 20) 2 Decision number: DN2017/0002, paragraph 42 3 Decision number: DN2017/0002, paragraph 45

Whilst our aim is to provide you with information whenever possible, under section 20 of the Act, we are not required to provide information in response to a request if it is already reasonably accessible to you, whether free of charge or on payment of a fee. Request 2 requested dates for first reading in Tynwald. Information regarding (i) the Bills which have been submitted to the House of Keys and Legislative Council and (ii) secondary legislation which has been submitted to Tynwald under any of the various Tynwald procedures as provided for in the Legislation Act 2015, is available from the Tynwald website (www.tynwald.org.im), and the Isle of Man Legislation website (www.legislation.gov.im). In respect of information relating to Bills currently before the Branches, statutory documents and government circulars via the legislation section of the Tynwald website here: https://www.tynwald.org.im/about/legproc/Pages/default.aspx. Copies of all primary legislation, and some secondary legislation (including revoked secondary legislation) can be accessed here: https://legislation.gov.im/cms/# Advice and Assistance (section 15) In order to provide advice and assistance to you pursuant to section 15 of the Act, we refer you to the Tynwald website and Legislation as is set out above for access to current passage of Bills and legislation enacted, or on order papers for Tynwald. In addition, we are able to provide you with the records we do hold, relating to details of the following, broken down by month – • Acts passed • Bills introduced • SDs included on Tynwald Order papers Month Acts Passed Bills Introduced SDs on Tynwald Order Papers Mar-19 0 2 53 Apr-19 0 0 23 May-19 0 0 57 Jun-19 2 3 22 Jul-19 2 0 41 Aug-19 0 0 0 Sep-19 0 0 0 Oct-19 2 5 59 Nov-19 0 1 30 Dec-19 0 1 33 Jan-20 1 1 21 Feb-20 0 2 37 Mar-20 1 3 82 Apr-20 1 2 64

May-20 3 0 42 Jun-20 1 5 26 Jul-20 2 0 52 Aug-20 0 0 0 Sep-20 0 0 0 Oct-20 5 2 41 Nov-20 2 3 39 Dec-20 2 7 56 Jan-21 0 1 36 Feb-21 1 0 25 Mar-21 1 3 49 Totals 26 41 888 There is no legislation considered in the branches during August and September. Please quote the reference number 1722493 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me.

Further information about freedom of information requests can be found at www.gov.im/foi.

I will now close your request as of this date.

Yours sincerely