Select Committee on Public Administration Memoranda


Submitted by Friends of the Earth 1.


  1.1  Friends of the Earth (FOE) appreciates the Select Committee's invitation to present written and oral evidence to this Inquiry, and apologises to the Committee for not being able to submit this written evidence earlier.

  1.2  In response to the consultation on the 1997 White Paper, we:

    "warmly welcome[d] the White Paper and .  .  .   its proposals. They hold out the possibility for a significant and positive change in the relationship of British citizens to their Government."

  1.3  Our overall reaction to the draft Bill, however, cannot be honestly described within the constraints of Parliamentary language.

  1.4  FOE has had substantial experience of using the "right to environmental information" contained in the Environmental Information Regulations 1992 (as amended), derived from Directive 90/313/EEC agreed to by the then Conservative Government. In 1996 we presented evidence of our experience to a House of Lords Select Committee.

  1.5  These Regulations have had a generally positive effect on access to environmental information, notwithstanding inadequate transposition. This inadequacy has largely, though not entirely, been rectified by the Labour Government in the 1998 amendments, following the European Commission's commencement of infringement proceedings pursuant to Complaints lodged by FOE and others. Infringement proceedings continue against the UK Government, particularly in respect of cost.

  1.6  However, flouting by public authorities on matters of major controversy continues. For example, the Department of Trade and Industry has failed to respond substantively to FOE's request under the legislation for a copy of the environmental impact assessment in respect of the proposed Ilisu Dam, and so we intend to commence legal proceedings imminently; and the Ministry of Agriculture, Fisheries and Food maintains that applications to market varieties of genetically-modifed seeds ("listing") are "voluntarily supplied" by the industry and cannot be disclosed without the companies' consent.


  2.1  In the short time available, we have focused our written evidence to the Committee on the amendments necessary to ensure that the Environmental Information Regulations can be subsumed, and the (prospective) obligations of the UK Government "to guarantee the rights of access to information" under the Aarhus Convention in respect of passive (as opposed to active) provision can be complied with, within a new Freedom of Information Act. The UK Government has said that it intends to ratify the Convention next year.

  2.2  To this end, we attach hereto in tabulated form our preliminary analysis of the principal necessary changes. For ease for reference, we also include copies of the 1992 and 1998 Regulations, the Directive and the preamble and Article 4 of the Aarhus Convention.[150] It will readily be seen that the Bill needs drastic amendment. Indeed, without a change in the whole tenor of the Bill, we doubt that it will be lawfully possible for these Regulations to be repealed and for the Government's (prospective) international legal obligations to be fulfilled. If the Government proceeds to legislate in a manner which takes away any of the rights we already have in breach of Directive 90/313, and Parliament does or will not step in to prevent them, then FOE will explore the possibilities of seeking a judicial review of the final Act.


  In summary, our preliminary analysis reveals that:

    —  the provisions on time limits need to be improved and elaborated on, and the time extension through use of the fees notice mechanism deleted;

    —  five exemptions need to be deleted entirely, namely:

—  the "news management" exemption (cl.17);

—  the "economy" exemption (cl.24);

—  the "civil proceedings" exemption (cl.25(2) and (3));

—  the "putting-two-and-two-together" exemption (cl.37); and

—  the "cost of compliance exceeding appropriate limit" exemption (cl.12).

    —  a further five categories of exemptions need to be partially deleted, namely:

—  the "international interest" (as opposed to "international relations") exemptions (cl.22(1)(c) and (d));

—  those "investigations" exemptions which cannot adversely affect the course of justice, a fair trial, or a criminal or disciplinary inquiry (cl.25(2)(a));

—  the tax, immigration, prisons and "(cl.25(2)(a)) investigations" exemptions within the "law enforcement" exemption (cl.26);

—  the "Ministerial private office" exemption (cl.28(1)(d)) and the two-tiered structure;

    —  a further 10 exemptions need to be amended to require an adverse effect, namely:

—  security matters (cl.18), national security (cl.19), defence, international relations (cl.22(1)(a) and (b)), relations within the UK (cl.23), criminal investigations and proceedings (cl.25(1) and (3)), remaining other investigations (cl.25(2)(a)), the remaining three law enforcement (cl.26(1)(a)-(c), court records (cl.27), the remaining decision-making and policy formulation (cl.28) and commercial interests (cl.34) exemptions;

    —  those 10 further exemptions also need to be amended to provide that they must be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment;

    —  the "commercial interest" exemption needs to be yet further amended to cover only that information which is protected by law in order to protect a legitimate interest and, within that framework, information on emissions relevant for environmental protection shall be disclosed;

    —  any remaining decision-making and policy formulation exemption needs to be qualified to exclude from its scope the views of the nature conservation agencies expressed during decision-making processes (in the light of a recent decision of the European Court of Justice);

    —  the power to confer additional exemptions retrospectively (cl.36) needs to be deleted, and the remaining prospective power needs to be limited to a duty not to be exercised so as to create any exemption that is not provided for in the Aarhus Convention or is contrary to EU law;

    —  an express duty to separate out exempt from non-exempt information needs to be inserted; and

    —  regulations on fees notices, and clause 16 (the "otherwise publicly accessible" exemption), must include a "reasonable" cost cap; the pre-payment provision should be deleted as it is not provided for in Directive 90/313; and charging for officials' time may be unlawful if, in the event, the European Court of Justice upholds the opinion of the Advocate General to this effect delivered in January 1999 in Commission v Germany (Case C-217/97).


  4.1  Unfortunately, we are not able in the time available to provide written evidence on other aspects of the draft Bill. We would add, however, that we wholly oppose the discretionary nature of the "public interest factor" (in cl.14) and regard it as totally unacceptable that the identity of the applicant, or the reasons for the request, should be relevant to any decision on disclosure. Such a provision is in stark contrast, not only to the essence of what it is to live in a society where we are all supposed to be equal before the law, but also to both the provisions of the Directive 90/313 (information to be available "to any natural or legal person at his request and without his having to prove an interest." (art.3.1)) and of the (stronger) Convention ("without an interest having to be stated" (art.41)).

  4.2  In all other respects, and in view of the short time available, FOE would wish to ally itself with the comments made by the Campaign for Freedom of Information at the time of publication of the draft Bill and pay tribute to its dedication to this important issue.

  4.3  Finally, we would draw the Committee's attention to Article 1 of the Aarhus Convention, setting out the Objective:

    "In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information . . . in environmental matters in accordance with the provisions of this Convention."

  4.4  Guarantees of these rights have been signed up to by 39 European governments and the EU, and the UK Government intends to ratify the Convention next year. FOE considers that it would be unforgivable for the UK Government not to proceed to full implementation of its terms.

June 1999

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