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DELEGATED LEGISLATION
Motion made, and Question put forthwith, pursuant to Standing Order No. 101(6) (Standing Committees on Delegated Legislation),
Motion made, and Question proposed, That this House do now adjourn.--[Mr. Burns.]
Mr. Matthew Taylor (Truro):
This is not the first time that the importance of ensuring that the public have access to environmental information has been discussed in the House. The Government have previously indicated their agreement, at least in principle. The European Union directive on freedom of access to information about the environment has been implemented by means of the Environmental Information Regulations 1992, but a major deficiency is that they lack a specific enforcement mechanism.
More than three years ago, in July 1993, the Government's command paper on open government promised to introduce a new statutory right of access to health and safety information modelled on the regulations. It was suggested that the new right could be enforced by a tribunal and that it could deal also with complaints made under the regulations. Although there have been three Queen's Speeches since the publication of the White Paper, and although the legislative programme has not been onerous on the Government, there has been no sign of implementing that proposal.
The matter was re-examined during the passage of the Environment Bill in 1995. Last March, Viscount Ullswater stated in the other place:
The Chancellor of the Duchy of Lancaster was questioned about the delay when he appeared before the Select Committee for Administration in January. He replied:
In the meantime, the public are denied access to a proper enforcement mechanism under the environmental information regulations, and to health and safety information. It is important to understand that, because the Government have said that the proposed right to health and safety information will not apply retrospectively, information that is now being gathered will not be accessible even when--or if--the new legislation is enacted. The longer the delay, therefore, the more information that may be withheld permanently from the public.
It may be asked whether there is reason for concern at the delays, and it may be suggested that it is not important that the delay is occurring. The fact is that the privatised water companies have refused to provide information, and British Gas has refused to provide information about contaminated lands. Railtrack even denied that the regulations applied to it, even before privatisation.
The Government have so far refused to issue further guidance, and they insist that it is for the courts to decide who is covered by the regulations. In the absence of a tribunal, that is essentially forcing people to go through expensive and possibly lengthy court proceedings--during which time the information loses its value--if they are to get any further.
An example from my own area are the efforts, with which I have occasionally helped, of the south-west solicitors Toller Beattie. They have asked for information and correspondence received from South West Water to the Department of the Environment. That information related to the delay to four bathing water schemes in the south-west and to the process under which the provisional list of sensitive areas was reduced while the list of less sensitive areas was increased--an extremely sensitive issue in the south-west.
The Department of the Environment gave a formal refusal, on the grounds that much of the information that was sought related to the confidential deliberations of the group that worked out which areas were sensitive and which were less sensitive under the urban waste water treatment directive. Further correspondence that was later produced showed that the information held had not even been considered by that group.
Surely the public have the right to know on what basis an area of bathing water has been declared sensitive, and therefore whether it may or may not be cleaned up. Surely a water company that may or may not be polluting that water should not have the right to withhold such information from the general public whom it serves.
So is there an effective alternative to a tribunal--something already in existence? The fact is that getting environmental information is difficult, and success is by no means guaranteed. There is an internal review, and internal reviews have a useful role to play in some circumstances. However, there will always be cases in which someone requesting information is thwarted, particularly if the
release of information might be embarrassing to the people holding it. That is why an internal review can never be a substitute for a truly independent tribunal.
The ombudsman may also have a role, but the post of ombudsman was created for the purpose of investigating maladministration, and the ombudsman may not rule in cases in which legal rights are under consideration and there is recourse to the judicial process. Even when examining maladministration, the scope of the ombudsman is limited by statute.
Moreover, the ombudsman currently has jurisdiction over only a limited number of organisations, only has discretionary powers of review rather than a duty, he conducts investigations in private, his decisions are not legally binding, and there is no set time period for review. That is a situation which is likely to lead to delaying tactics by those holding information against those who are quite justifiably seeking that information, particularly when making it available quickly may be at the root of the issue at hand.
It is true that the courts may provide an alternative, and, in a few instances, it may be possible to argue that there has been a breach of statutory duty. It is not clear, however, whether that remedy is available in all cases. Any plaintiff in such an action will probably need to show that he or she has suffered some kind of damage, which could be exceptionally hard to demonstrate if denial of information is the issue. If one does not have the information, how can one show the damage?
There are also limitations on the right to bring an action for breach of statutory duty--for example, where actions are brought against Ministers. In such cases, the only means of compelling a public body to comply is by judicial review, a remedy that is too expensive and time-consuming for ordinary citizens, and too time-consuming for it always to be useful even to many who could afford it.
Moreover, judicial review is an inappropriate remedy for many of the complaints that arise under the regulations. It is not an effective means of challenging whether an authority has wrongly withheld information under one of the discretionary exemptions in the regulations--if the information is commercially confidential, for example--because the court will not substitute its discretion for that of an authority.
The truth is that the only suitable forum for solving such problems would be an environmental information tribunal. The Government have conceded the advantages of a tribunal for that purpose, and have said in the past that they have no objection in principle to creating one. However, those statements must be thrown into doubt by their lack of action, which is already making a material difference to those who seek such important information.
The advantages of a tribunal set up specifically to ease the flow of environmental information, and incidentally to ensure that this country meets its international obligations, are clear. First, it would be a truly independent body, favouring neither side in a dispute. Information could be reviewed in camera, and the independent body could decide whether it should be withheld on grounds of commercial confidentiality. That is an important point.
As an example of what happens as things stand, in one case the Health and Safety Executive responded by saying that it would
An environmental information tribunal should also have discretion over the payment of costs in particular cases, which should include the possibility of some cases being publicly funded, in the public interest.
The central point of the debate is that the Government have agreed that in theory there is a legal right to information, guaranteed under the EC directive on freedom of access to information on the environment, which the Government say they support. The public now have a theoretical right of access to environmental information, yet in reality, as we have seen with South West Water and several other bodies throughout the country, they can effectively be denied information about pollutants that may be affecting them personally.
That the Companies (Fees) (Amendment) Regulations 1996(S. I., 1996, No. 1444), dated 5th June 1996, a copy of which was laid before this House on 5th June, be approved.--[Mr. Burns.]
Question agreed to.
That the draft Building Societies Act 1986 (Continuance of Section 41) Order 1996, which was laid before this House on5th June, be approved.--[Mr. Burns.]
Question agreed to.
Environmental Information
10 pm
"I fully agree with the wish . . . to make sure that people have adequate rights of redress under the regulations. Indeed, that is specifically required of member states by the directive."
The EC directive on freedom of access to information on the environment--to which the Government have signed up--states:
"It must be possible for the applicant for environmental information to appeal against the public authority's decision."
Viscount Ullswater added:
"Powers to create an environmental, health and safety tribunal would be included in legislation to create the health and safety access right, when parliamentary time is available."--[Official Report, House of Lords, 9 March 1995; Vol. 562, c. 516.]
In Committee on the Environment Bill, I introduced an amendment to allow for the creation of a specialist tribunal that could hear disputes over the provision of the access to environmental information. The Minister anticipated
"soon being in a position to create a dual-purpose tribunal that will be included in legislation to create the proposed health and safety access. Of course there is the caveat of parliamentary time, but I understand that work is now under way to deal with some of the difficulties that have been considered . . . It is well in hand."--[Official Report, Standing Committee B, 13 June 1995; c. 667.]
Given that the Minister insisted eight months ago that work was well in hand, perhaps the Under-Secretary replying tonight will explain whether we are any closer to establishing an environmental information tribunal. The answer appears to be no.
"A commitment was given, a promise was made, we have not delivered it so far and I want those promises honoured."
19 Jun 1996 : Column 975
It appears that the Government are happy to agree that an environmental information tribunal is needed, and are happy to give assurances that one will be created as soon as possible. But they are less happy to give a firm timetable as to exactly when a tribunal will be established, let alone accept my amendments to create one.
"have to accept the manufacturer's view"
19 Jun 1996 : Column 977
that information requested about the Control of Industrial Major Accident Hazards Regulations 1984 might be confidential. Such an attitude leaves it entirely in a company's hands to decide whether the public can have access to environmental information that it holds, which may be extremely important to those individuals.
Obviously there should be a requirement for cases to be reviewed within a specified time scale, which would mean that the timing of the release of information could not be manipulated to limit its impact, and delaying tactics could no longer be used with impunity. Decisions would, of course, be binding, and subject to appeal only within the current court system on a point of law. A body of precedents would eventually be established,, which would help to increase the flow of information to the public.
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