Environmental Pollution Information

Part of the debate – in the House of Commons at 3:34 pm on 26th June 1985.

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Photo of Mr Nigel Forman Mr Nigel Forman , Carshalton and Wallington 3:34 pm, 26th June 1985

I beg to move, That leave be given to bring in a Bill to provide a public right of access to information concerning the discharge or disposal of substances into the environment and the presence of certain dangerous substances on premises, held by certain government departments and other authorities and by persons responsible for such substances; and to require certain government departments and authorities to notify those affected of hazards to their health or safety, or danger to their property likely to be caused by such substances; and to establish the office and powers of the Environmental Information Commissioner. I apologise for the length and complexity of the long title, but I hope to show that there is need for such legislation and that my proposal would meet that need.

The aim of the Bill is to ensure that the public have access to full information about pollution of the environment and attendant risks to public health. Too often that information is treated as confidential when it need not be. Unnecessary obstacles may be placed in the way of people who want to know about environmental hazards and the corrective action that may or may not be taken to deal with them. In some cases that is because the law prevents a pollution inspector from disclosing information. In other cases, information is withheld on the grounds that it may alarm people or that people would not understand the technicalities. Inevitably, in those circumstances there is suspicion that secrecy exists to protect those who create environmental hazards or to conceal official inaction. That secrecy and the public mistrust that it can create is a problem which has long worried the Royal Commission on environmental pollution.

In 1972, the Royal Commission reported that the need for commercial secrecy seldom required information about pollution to be withheld. It therefore called for a more open approach to such matters. It has repeated that call on a number of subsequent occasions.

Although some progress has been made, when the Royal Commission published a major review last year of the availability of information on environmental pollution it concluded that unnecessary secrecy continued to frustrate legitimate inquiries and it recommended that the public should be entitled to the fullest possible amount of information on all forms of environmental pollution, with the onus placed on the polluter to substantiate claims for exceptional treatment. The Royal Commission went on to make the overriding recommendation that a guiding principle behind all legislative and adminstrative controls relating to environmental pollution should be a presumption in favour of unrestricted access for the public to information which the pollution control authorities obtain or receive by virtue of their statutory powers, with provision for secrecy only in those circumstances where a genuine case for it can be substantiated. I am glad to say that that is a recommendation which the Government accepted in principle in paragraph 21 of their response to the 10th report of the Royal Commission, and my Bill would implement that recommendation.

The Bill provides the public with a right of access to information about pollution while exempting from disclosure some categories of information where a genuine case for confidentiality can be made out. It gives people the right to see and copy any official documents about pollution unless the document contains exempt information. It applies to information held by central and local government and by any other public authority with responsibility for pollution matters.

The Bill would enable anyone to see information, such as monitoring data, hazard assessments, research findings, cost-benefit analysis of various pollution control strategies and a wide range of other relevant material. It would also require a pollution control authority to provide information to anyone whose health or property was put seriously at risk by pollution or by the storage of dangerous chemicals. That is a duty which factory inspectors already have in relation to people at work. It seems right that the general public should benefit similarly.

Furthermore, the Bill requires that those who create pollution should disclose relevant information on request. That is necessary because it would be unrealistic and unreasonable to expect the pollution control authorities to possess complete information on all pollution problems which might arise.

Some categories of information would be exempt from disclosure. The exemptions are designed to protect four main interests. The first is the interest of national security. The disclosure of information which would jeopardise our defence or foreign relations would therefore be exempt. The second interest is that of legitimate commercial secrecy. For example, the Bill would not require the disclosure of information which might prejudice the protection of vital commercial interests, such as sensitive product testing data, or give an unfair advantage to competing firms. However, that exemption could be waived in those rare cases where the public interest in disclosure was deemed to be paramount.

The third interest is that of individual privacy. For example, information on the health of someone adversely affected by pollution would not be made publicly available. The fourth category is the interest of pollution control. Polluters would not be able to use the legislation to gain advance notice of what should otherwise be an unannounced inspection by the relevant pollution control authority.

Equally, pollution control authorities might sometimes depend upon information given to them voluntarily and in confidence but which they have no legal power to demand. It would, therefore, be unwise to require them to disclose such information if as a result that information was no longer forthcoming. However, where the authority has the legal power to require the information or where there is a positive incentive for a firm to supply it—for example, if this is done in return for the granting of a licence or to influence draft legislation—the public disclosure is unlikely to cause the supplier to withhold it and the information would, therefore, not be exempt.

In cases of dispute the Bill provides for the establishment of an environmental information commissioner with legal powers to ensure that the legislation is enforced and with the power to require or prevent disclosure in a particular case. However, there would also be a right of appeal to the High Court on a point of law.

In connection with wider considerations, I stress that the Bill provides a legal right of access to information which can be enforced by the commissioner if the authorities fail to comply. It does not leave disclosure simply to the discretion or good will of the pollution control authorities. Experience has shown that the latter approach is not adequate.

For example, the English water authorities have decided to make use of their newly acquired discretion to exclude the public from their meetings. The local authorities have power under the Control of Pollution Act 1974 to obtain information about air pollution in their area. Any information so obtained must be published. However, in practice most local authorites obtain such information informally without using their powers and thereby circumvent the obligation to publish the data.

I stress that the Bill will provide what the Royal Commission has called for—unrestricted access to information held by pollution control authorities. That is not the same as specifying one or two items of information which will be available, perhaps on a register, while leaving the rest of the information as difficult to obtain as before.

We want to get away from the approach suggested by the Health and Safety Commission in its recent discussion document. It suggested that access should be given only to very limited information held by Health and Safety Executive inspectors, that disclosure should normally be at the discretion of the employers, that information should be available only to those with a demonstrable "need to know", and that instead of full access to complete data the public should make do with some relatively simple account of the type of hazard which might occur. I hope that the House will agree that the HSC approach is unsatisfactory and that progress along the lines of my Bill would be infinitely preferable for the cause of environmental protection.

The Government make clear in paragraph 22 of their response to the 10th report of the Royal Commission that they also hope to find a uniform way of implementing the commission's recommendations on confidentiality. The search for such a uniform regime is now the responsibility of an interdepartmental working party which will have to report to Ministers by the end of the year.

I stress that the Government have taken a positive line throughout and remain firmly committed to the principle of greater openness in environmental matters. I am also glad to say that I have received messages of support for the Bill from the National Consumer Protection Council and the National Association of Local Councils.

A uniform regime on confidentiality would be achieved by my Bill since it applies equally to all bodies with official responsibility for controlling pollution. At present there are too many anomalies. Some pollution control authorities are required to disclose certain information about discharges, others are prohibited by law from doing so. Employees have explicit statutory rights to information about work place hazards, but the general public is often denied that information even when equally at risk.