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2.1 This section exempts information, which would, or would be likely to, prejudice relations between administrations in the United Kingdom. These administrations are: the UK Government, and the respective devolved administrations in the constituent parts of the United Kingdom namely:
2.2 The devolved administrations are distinct from the Scotland Office, Northern Ireland Office and Wales Office, which are part of the UK Government. Section 28 is engaged, regardless of the nature and content of the information in question, where the effects of disclosing information would or would be likely to prejudice relations between any of the administrations - that is not only the relationship between the UK Government and a devolved administration, but also relations between the devolved administrations themselves. (Details of the relationships between the administrations and their respective responsibilities are set out in the Memorandum of Understanding (CM 5240) (hereafter "MoU") and a brief summary is provided in the attached annex A).
2.3 In very broad terms, the devolution statutes establish the extent of devolution to the three devolved administrations, and the UK government represents UK interests in matters which are not devolved to Scotland, Wales or Northern Ireland. Policy responsibility for non-devolved matters is within the exclusive responsibility of the relevant UK Government Ministers and departments, and in these areas the Secretaries of State for Scotland, Wales and Northern Ireland are responsible for ensuring that the interests of those parts of the UK are properly represented and considered. There are agreements in place to govern relations in areas such as the EU and international relations, and concordats on the handling of procedural, practical or policy matters. There is agreement between the administrations that the four of them will work together (where appropriate) on matters of mutual interest and co-operate on a range of issues.
2.4 As is explained in Annex A to this Chapter, the Northern Ireland Assembly is currently suspended. The Offices of the First Minister and Deputy First Minister of Northern Ireland, and of Northern Ireland Ministers and junior Ministers continue to exist, but remain vacant during the suspension. Therefore, there is currently no Executive Committee of the Northern Ireland Assembly. During suspension of the Assembly its legislative competence may be exercised by Her Majesty by Order in Council, and the Secretary of State for Northern Ireland is empowered to exercise functions of the First Minister and Deputy First Minister. Northern Ireland Departments may continue to exercise their functions subject to the direction and control of the Secretary of State. Despite the suspension of the Assembly it is still conceivable that information might fall within the section 28 exemption if its disclosure would, in the event of restoration of the Executive Committee of the Northern Ireland Assembly, prejudice relations between it and one of the other administrations. But it is difficult to envisage this issue arising in isolation, save in exceptional circumstances. Far more likely is the possibility that information may fall within the section 28 exemption on the basis that its disclosure would damage relationships between the currently functioning government of Northern Ireland (that is, the government of the United Kingdom in the form or the Northern Ireland Office or a Northern Ireland Department acting under the direction and control of the Secretary of State), and the Scottish Executive or the National Assembly for Wales.
2.5 There are two distinct circumstances in which section 28 might apply: where information subject to an FOI request has been obtained from or shared between administrations; and where information held by one administration (in particular the UK Government) could prejudice relations because they would not want other administrations to see the information or because other administrations would not want the information to be disclosed.
2.6 As is made clear in the MoU between the UK administrations, all four are committed to the principle of good communication with each other - especially where one administration's work may have some bearing upon the responsibilities of another. To enable each to operate effectively, they provide each other with policy information including scientific and technical statistics, research and, where appropriate, representations from third parties. They will (in confidence where necessary):
But there are certain areas of government action (e.g. national security and budget proposals) where prior notification is much less likely.
2.7 Under the MoU agreed between the four administrations, there are safeguards to ensure that information shared with other administrations is subject to appropriate protection. It has been agreed that in certain circumstances confidentiality is expected between administrations and that the administrations should (as far as possible) respect this confidentiality. Under the MoU, administrations will:
2.8 An expectation of confidentiality cannot be absolutely determinative of the question of whether a disclosure would be likely to prejudice relations between administrations. All of the circumstances at the time of the potential disclosure must be considered. But it is likely to be a very relevant consideration.
2.9 Apart from information shared between administrations there may be many circumstances in which one administration holds information the disclosure of which would be likely to prejudice relations with another administration. Examples might include:
Reserved and excepted matters are indicated at Annex A.
2.10 Different considerations will clearly apply to such cases. In dealing with requests for such information it will be necessary to consider the degree of prejudice which might be caused by disclosure. Embarrassment is not enough to justify the use of the exemption. If there is a potential prejudice it will then be necessary to apply the public interest test to ascertain whether the public interest favours disclosure (even though disclosure would have an adverse impact on relations).