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
1.3 Our overall reaction to the draft Bill,
however, cannot be honestly described within the constraints of
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. THE DRAFT
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.
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.
3. SUMMARY OF
In summary, our preliminary analysis reveals
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
the "news management" exemption
the "economy" exemption (cl.24);
the "civil proceedings" exemption
(cl.25(2) and (3));
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"
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"
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
"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.
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