Policy paper

Annex B: protocol for public and parliamentary accountability between DHSC and the HFEA

Published 6 January 2022

1. Introduction

1.1 The Department of Health and Social Care (the department) and its arm’s length bodies place great importance on public and parliamentary accountability. This reflects the reality that the department and its ministers remain responsible for the system overall and will need support from their arm’s length bodies to provide assurance that the system is working well.

1.2 This protocol sets out how the department and the Human Fertilisation and Embryology Authority (HFEA) will work together to maintain the confidence of the public and Parliament, and to maintain the service levels that MPs and the public have come to expect.

2. Purpose

2.1 The purpose of this protocol is to set in place robust public and parliamentary accountability arrangements and to ensure good communication and collaborative working between the 2 organisations.

2.2 This agreement between the department and the HFEA is intended to help both organisations:

• meet their respective public and parliamentary responsibilities
• set out their own operational needs
• understand their own and respective organisation’s role and independence
• develop and strengthen collaborative partnership working
• maintain the confidence of the public, ministers, MPs and peers

3. Working together

3.1 The department acknowledges the HFEA’s statutory independence from government. However, both organisations recognise the need to work together so that a consistent message is given on matters where they have a shared interest. This maintains the confidence of the public, ministers, MPs and peers alike.

3.2 In doing this, the department and the HFEA will:

• share information about topics of interest to the public and contentious or sensitive issues
• advise each other of changes to roles, responsibilities, and strategic direction or policy

4. Quality, consistency and performance standards

4.1 Both the department and HFEA, where it has a statutory remit, have a responsibility to establish robust public and parliamentary accountability arrangements across the health and care system.

4.2 The department and the HFEA have agreed to put in place named contacts, adequate resources, robust processes and comprehensive arrangements to deal with the handling of public enquiries, correspondence, parliamentary questions, all other types of parliamentary business, Freedom of Information requests and complaints that meet the needs of ministers and parliamentary expectations and timescales.

4.3 The department and the HFEA will work collaboratively to ensure that both quality and performance standards are maintained.

The department will:

• send clear, unambiguous commissions for answers to parliamentary questions and briefings, allowing as much time as possible within parliamentary and other timescales for the HFEA to provide the information required via the sponsor team or other commissioning team

• work with the HFEA to make sure that its staff have the skills and knowledge required to provide contributions, briefings and replies that meet the required standards of timeliness, accuracy and reliability of content and method of presentation that apply across the department and all of its arm’s length bodies where this support is needed

• make sure that quality assurance and appropriate senior level clearance arrangements are established within the HFEA, and that an appropriate level of Senior Civil Service oversight is applied to the HFEA’s responses

• make sure that the HFEA is sighted on the department’s policy and shares information to ensure that both organisations work together seamlessly

• review and agree performance standards which compare to those of the department, and which are realistic and achievable for the HFEA

• work with the HFEA to set in place robust performance management procedures and processes to enable the HFEA to meet its performance targets

The Human Fertilisation and Embryology Authority will:

• provide the sponsor team, or other commissioning teams within the department, with contributions to parliamentary questions, answers and briefings that allow ministers to meet their obligations under the Ministerial Code, meet Cabinet Office and the department of Health and Social Care requirements, and that are timely, comprehensive, accurate, true and fair, and engage meaningfully with the issue

• maintain capacity and capability to ensure that correspondence contributions, briefings, and parliamentary questions replies meet the department’s style, quality and timeliness standards, and which answer the points raised

• maintain robust systems to manage and archive all public and parliamentary accountability work

• maintain quality assurance and arrangements for clearance at the appropriate level

• make sure that Freedom of Information responses meet the requirements of Freedom of Information legislation on timeliness and provision of information and embrace the government’s commitment to openness and transparency

• make sure that responses to requests made and issues raised under Data Protection legislation are handled in a timely and appropriate way, in line with the requirements of the legislation and good information privacy standards

• make sure that the department is sighted on issues affecting the HFEA and shares information to ensure that both organisations work together seamlessly

• secure capacity and capability to ensure that at least 90% of correspondence addressed to HFEA is replied to within 18 working days (the Department of Health and Social Care’s Whitehall Standard target)

• have sufficient resource to ensure that Freedom of Information requests are responded to within 20 working days of receipt in line with legislation

• have sufficient resource to ensure that Data Protection Act requests are responded to

• put suitable arrangements in place to respond to telephone enquiries

• make sure appropriate performance management arrangements are in place to sustain a good service level

5. Role of the Department of Health and Social Care sponsor team

5.1 The department’s sponsor team’s primary role is to be the principal point of contact between the HFEA and the wider department (and, where necessary, the rest of government). As part of its role, the sponsor team is responsible for dealing with all relevant business matters between the department and the HFEA. This includes monitoring the delivery of this protocol and carrying out regular reviews in discussion with the HFEA to ensure it remains fit for purpose.

5.2 The sponsor team recognises that it is the HFEA’s statutory responsibility to deliver its business. However, there is a responsibility placed on the sponsor team to remain assured that the HFEA’s public and parliamentary work, and any contribution provided to the department to fulfil its Department of State function, meets all the required standards.

6. Parliamentary accountability

6.1 This will involve responsibilities around a number of parliamentary accountability processes, including parliamentary questions, MPs’ correspondence, debates and committee hearings.

6.2 Ministers are required to respond to parliamentary business and the HFEA has agreed to provide the department with contributions to assist in drafting speeches, suggested answers and briefing as appropriate that enables ministers to account for the HFEA. Briefing will include relevant background information, in the format requested by the department, and be signed off at director level or equivalent at the HFEA.

6.3 In order to emphasise organisational responsibilities and accountabilities, ministers will take every opportunity to explain relevant organisational responsibilities and encourage MPs and peers to liaise directly with the HFEA.

6.4 The department and the HFEA have agreed to give sufficient notice of requests and provide timely responses to meet parliamentary deadlines. The process for this is set out below.

Oral questions and debates

6.5 The department will alert the HFEA via the sponsor team to the oral question or debate promptly and normally on the day of receipt. The commission will be clear and provide a steer on what should be included.

6.6 The HFEA will provide accurate information (and background where appropriate), in the format required, by the deadline set by ministers, which is usually within 24 hours. The HFEA will put suitable clearance arrangements in place at director level or equivalent.

Written questions concerning matters within the responsibility of the HFEA

6.7 The department will alert the HFEA to the question promptly and normally on the day of receipt and seek a full answer and relevant background material for the minister to consider.

6.8 Where the question covers either a corporate matter or a function that is not covered by a departmental policy lead, the response will be co-ordinated by the sponsor team. Where the question covers several policy or functional areas, or asks about more than one arm’s length body, the response may be led and co-ordinated by other officials within the department.

6.9 The general approach is that answers need to be substantive and make clear where data has come from. Where appropriate, answers should be presented in terms of “The HFEA has advised that…”

6.10 The HFEA will establish clearance arrangements at director level or equivalent to ensure that responses are to the required standard and that they are returned within the deadlines set.

Select committees

6.11 The department will request from the HFEA any necessary information and briefing promptly, to enable a minister or official to provide written or oral evidence to a select committee. The commission will be clear and provide a steer on what should be included.

6.12 The HFEA will also provide information promptly to select committees directly in appropriate circumstances. If called, the chief executive of the HFEA will attend select committees.

Correspondence from MPs or peers sent directly to HFEA

6.13 Correspondence from an MP or peer sent directly to the chair, chief executive, director, or another official within the HFEA about matters relating to the business of the HFEA will normally receive a direct response from the HFEA. It is usual for the addressee to reply, but this will be a matter for the HFEA to determine. The HFEA will aim to respond within deadlines set by the department.

6.14 If MP correspondence refers to business relating to both the department and the HFEA, the HFEA should reply answering the enquiries about HFEA business, explaining the independence of the HFEA and recommending that the MP or peer contacts the department directly about issues that are solely the concern of the department.

Correspondence from MPs or peers to the department about HFEA responsibilities

6.15 As the HFEA is not a government department, the Data Protection Act prevents the department from automatically forwarding correspondence. Correspondence from an MP or peer addressed to departmental ministers or officials, but which relates to the business of the HFEA, will be responded to by a departmental minister in accordance with protocol.

For any issues raised relating solely to HFEA business, the reply will explain the independence of the HFEA and advise the MP or peer to contact the HFEA directly.

6.16 There may be occasions when the matter is so sensitive that ministers consider it appropriate to respond fully to the correspondence. In such cases, the department will discuss and agree with the HFEA the most appropriate handling approach.

6.17 When a contribution from the HFEA is required for a ministerial reply, the department will aim to request the contribution within 48 hours of receipt of the correspondence. The HFEA will aim to provide the contribution to the sponsor team within 48 hours of the request being received. The HFEA will set in place appropriate senior clearance arrangements to ensure that the contribution is of a good quality and is returned within the stated deadline.

6.18 In instances where the correspondence covers both Departmental and HFEA responsibilities, the department will reply addressing the issues it is responsible for and refer the MP or peer to the HFEA to address issues regarding its remit.

6.19 At all times, the department will aim to comply with its Whitehall Standard target.

MP or peer meeting requests to Department of Health and Social Care ministers to discuss the HFEA

6.20 Should a request from a MP or peer for a meeting with a departmental minister to discuss HFEA matters be received, the minister’s private office will consider the request and seek timely advice from the HFEA, via the sponsor team, before responding. The department will aim to contact the HFEA on the day that the meeting request is received for advice. The department will aim to comply with its Whitehall Standard target when responding to the MP.

6.21 Where asked to do so, the HFEA is expected to provide well considered and timely advice on whether or not the minister should accept the meeting request. It will provide detailed briefing in advance of the meeting to agreed deadlines and arrange for a relevant senior officer to attend the meeting with the minister, if required.

MP meeting requests to meet HFEA officials

6.22 Should an MP or peer request a meeting with officials from the HFEA, it is expected that the HFEA will normally agree to the request and handle them directly. The HFEA will make the sponsor team aware of any such requests.

7. Public accountability

7.1 The department and the HFEA have agreed to give sufficient notice of requests, and provide timely responses, in order to meet the Whitehall deadline for correspondence and legal deadline for Freedom of Information requests.

Correspondence from members of the public to the department about matters that are the responsibility of the HFEA

7.2 The Data Protection Act prevents the department from automatically forwarding correspondence. Instead, the department will respond to the correspondence it receives, explaining the independence of the HFEA and signposting the correspondent to the HFEA. In instances where the correspondence covers both Departmental and HFEA responsibilities, the department will reply with its policy lines and refer the correspondent to the HFEA for all matters pertaining to the HFEA. At all times, the department will aim to comply with its Whitehall Standard target.

Public enquiries

7.3 For the purposes of this protocol, public enquiries are telephone enquiries. The HFEA will be responsible for maintaining its own arrangements to answer its public enquiries.

7.4 The department will advise any caller who wishes to discuss matters which relate solely to the HFEA to contact the HFEA directly.

Letters and emails from members of the public to the HFEA

7.5 Correspondence from the public and health and social care professionals addressed directly to the HFEA will be responded to directly. Where possible, the HFEA will comply with accepted Whitehall Standard targets.

7.6 If the correspondence covers areas that should rightly be for the department to answer, the HFEA will respond to the correspondent explaining the independence of the HFEA and refer them to the department. The HFEA will check with the department beforehand to ensure that it has re-directed the correspondent correctly and vice versa.

7.7 The department will pass on all public correspondence addressed to the HFEA but delivered erroneously to its Ministerial Correspondence and Public Enquiries Unit within 24 hours of receipt.

Freedom of Information and data protection requests direct to the HFEA

7.8 The HFEA will respond to all Freedom of Information and data protection requests submitted to it. As a public authority, the HFEA has a legal obligation to provide information in response to these requests and will be required to have in place an approved publication scheme and also restricted access to personal data (as required by the Data Protection Act). Under the Data Protection Act 2018 and the Freedom of Information Act 2000, information is ‘held’ by a public authority if it is held by that authority, or by another person or organisation on behalf of that authority. The HFEA will also have a duty under those acts to provide advice and assistance to people who have made, or propose to make, information requests to the organisation.

7.9 Quantitative and qualitative records about data protection and Freedom of Information requests received and answered should be maintained by the HFEA and it may wish to publish some of this information on its external website.

7.10 The department will pass on all data protection and Freedom of Information correspondence addressed to the HFEA but delivered in error to its Ministerial Correspondence and Public Enquiries Unit within 24 hours of receipt.

7.11 Although the HFEA must independently handle data protection and Freedom of Information requests as a separate organisation, the department’s data protection and Freedom of Information teams will provide informal and impartial advice on relevant legislation and duties. The decision as to whether a request falls under a relevant exemption or not will still rest with the HFEA.

7.12 The HFEA will make its own arrangements for receiving formal legal advice on data protection and Freedom of Information handling.

7.13 The Secretary of State for Health and Social Care has given the HFEA’s chief executive the authority to be the nominated ‘qualified person’ in the event of the HFEA invoking a section 36 exemption.

Papers of a previous administration

7.14 It is an established convention that incumbent ministers should not have access to any minutes or documents written by a predecessor of a different party other than those which were published or put in the public domain by the predecessor.

7.15 Nor should incumbent ministers have access to departmental papers which would inform them, either directly or indirectly, of their predecessor’s views.

7.16 Any requests under the act which relate to certain classes of information produced by a previous administration of a different political party will come within the scope of the convention governing ‘papers from a previous administration’.

Scope

7.17 The convention covers requests made under the Freedom of Information Act 2000 for information which:

• comprises advice provided to a former minister
• comprises unpublished documents written by a former minister, including those written by officials on their behalf such as cabinet committee papers
• contains views directly expressed by a former minister
• makes explicit or implicit reference to the views of a former minister
• contains factual or background information from which it would be possible to deduce the views of a former minister from the nature of the information included or omitted
• relates to matters particular to individual former ministers, such as expenses, diaries or other personal information

7.18 Documents which might contain such information include, but are not limited to:

• submissions
• minutes of meetings; memoranda which relay former minister’s views (such as notes from private offices)
• letters; email chains and casework

7.19 Departmental Freedom of Information teams should consult relevant policy officials when considering whether information should be classed as under the ‘papers of a previous administration’.

Freedom of Information and data protection requests received by the department about the HFEA

7.20 Freedom of Information requests to the department about the HFEA will be assessed based on whether the department holds the information at the time of the request. The standard rules of Freedom of Information compliance will apply.

7.21 If the department holds the information and considers that it does not fall within the scope of a Freedom of Information exemption, the department will release the information and close the case.

7.22 If the department does not hold the information – but judges that it may be in the HFEA’s possession – under the Freedom of Information Act’s duty to assist and advise, the department will advise the applicant to contact the HFEA (giving full contact details) and close the case.

7.23 In the event of the department responding to a Freedom of Information request with information that it considers to be relevant or of interest to the HFEA, the department will inform the HFEA about the release of that information in sufficient time to prepare appropriate media handling if necessary. The HFEA will also operate to this model.

7.24 Similarly, if the department receives a request under the Data Protection Act for access to personal data, or a request to stop processing personal data and it holds the data, it will respond to the request and inform the HFEA about the release of that information in sufficient time to prepare appropriate media handling if necessary, and vice versa. If the department does not hold the data, it will advise the applicant to contact the HFEA.

7.25 There will be no onward referral of data protection or Freedom of Information cases to or from either organisation.