Environmental Information Regulations 2004

– in the House of Lords at 12:58 pm on 21st December 2004.

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Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Food, Farming and Sustainable Energy) 12:58 pm, 21st December 2004

rose to move, That the draft regulations laid before the House on 27 October be approved [33rd Report from the Joint Committee, Session 2003–04; 23rd Report from the Merits Committee, Session 2003–04].

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Food, Farming and Sustainable Energy)

My Lords, there have been environmental information regulations in the UK since 1992. Under those regulations the public gained a statutory right of access to environmental information held by public authorities and certain other bodies. We are now replacing those environmental information regulations in response both to the Aarhus Convention and the EU Directive of 2003–04 on public access to environmental information. The new regulation clarifies and enhances the 1992 regulations.

The revised regulations provide a shorter time for authorities to respond. They require proactive dissemination of information, they make the public interest test explicit and they state that there will be a presumption in favour of disclosure. They give enforcement powers to the Information Commissioner.

The new regulations do not add new burdens to public authorities. Under both the new and the old regulations, all organisations which perform public functions in relation to the environment are included—including utility companies and waste contractors—creating a comprehensive system which covers all environmental information which affects peoples' lives. Authorities cannot evade these regulations by contracting out their environmental functions to someone else.

So why have we required these new regulations? In 1998 we signed the Aarhus Convention, which aims to strengthen the role of members of the public and environmental organisations in protecting and improving the environment for the benefit of future generations. By recognising citizens' environmental rights to information and to participation in justice it aims to promote greater accountability and transparency. The convention aims to allow members of the public greater access to the information held by public authorities, including active dissemination of information to the public. The European Community has also signed the Aarhus Convention and has adopted several instruments to apply the convention across the Community, one of which is the EU directive on public access to environmental information, which the UK is required to transpose by February 2005. The new regulations transpose that directive into UK law, as well as ensuring that we can ratify the Aarhus Convention.

We have ensured that the regulations will work in harmony with the Freedom of Information Act, to make it easier for public authorities to implement and easier for the public to understand. Hence, we are using the same timescale to respond to requests as is contained in the Freedom of Information Act—that is, 20 working days for most requests; the same requirements for handling requests regarding advice, assistance and the format; and the same Information Commissioner to oversee the regime.

The new regulations encourage authorities to make information routinely available on websites, where possible, and require proactive dissemination of information. Information that is readily available online reduces the need for formal requests. Most requests will be free to the applicant. For freedom of information authorities we will recommend use of that approach to charging. Only if the amount of work involved exceeds the appropriate limit—£600 for central government and £450 for local government—will the authority charge a reasonable sum for the request. For other public authorities, any charge must also be reasonable. Where there is a charge, it will be no more than the cost of supplying the information, except where a market-based charge is necessary to ensure the continued supply of information.

I am confident that these regulations will improve policy making and the democratic process by extending access to facts and analysis behind those policies. As well as building greater trust between citizens and public authorities, better access to information also supports a culture of better and informed public engagement in civic matters. That helps to improve the quality of life for all UK citizens.

The priority now is to integrate sustainable development into decision-making. To achieve that, it is important that everyone is able to access environmental information, and the Government are committed to improving that access. These regulations fulfil that commitment and will enable the UK to progress its aims of transparency, public participation and access to justice. Therefore, I hope that your Lordships will join me in supporting the regulations. I beg to move.

Moved, That the draft regulations laid before the House on 27 October be approved [33rd Report from the Joint Committee, Session 2003–04; 23rd Report from the Merits Committee, Session 2003–04].—(Lord Whitty.)

Photo of Lord Dixon-Smith Lord Dixon-Smith Shadow Minister, Environment and Transport

My Lords, I am grateful to the Minister and, indeed, the Government for the advance information and explanatory documents relating to these regulations and, now, for the Minister's explanation of them. They are a welcome update in principle and, generally speaking, in detail but inevitably I want to ask just one or two questions.

Regulation 4(4)(b), which concerns the dissemination of environmental information, states:

"The information . . . shall include . . . facts and analyses of facts which the public authority considers relevant and important in framing . . . environmental policy proposals".

My question is: how far does that extend? One comes to the crunch in all this in Regulation 19, which concerns the offence of altering records with intent to prevent disclosure. There, one finds that any person to whom this regulation applies—in other words, anyone who alters or defaces records or who erases, destroys or conceals records—is liable to a very severe fine.

The specific question that needs to be asked relates to e-mail. The Government recently issued what I would describe as a request around government departments that the delete button be applied to e-mails more than three months old. There will certainly be occasions when facts and analyses of facts in this area will be dealt with by e-mail. If the general practice which the Government appear to be advocating spreads across public authorities in this area, it seems to me that people will inevitably—perhaps inadvertently but under some kind of guidance—become liable to an offence under Regulation 19. I am sure that that was not the Government's intention when they issued their advice on e-mails.

With regard to my e-mails, I press the delete button daily and then weekly to get rid of the whole lot and keep my computer relatively clear. That seems to be an entirely sensible practice. Of course, I am not a Minister. I am not taking relevant decisions and I am not in the government department where officials act on such matters, but I believe that this is a very serious issue. If what the Government appear to be advocating ultimately becomes general practice throughout public authorities, the question will arise of the compatibility of government practice and the regulations. Therefore, I should welcome some response from the Minister on that specific matter.

The other issue on which I wish to speak briefly concerns charging. We know that there is a fairly high level of cost and value which has to be exceeded before charges can be made. But the difficult question is: how is that charge to be controlled? It is such charge as the authority itself considers reasonable. What role, if any, does the commissioner have or will the Minister make the decision via his code of practice, which the commissioner will presumably have to administer; and, if so, what advice will the Minister give? There needs to be some distinction in this area.

It is one thing to write to an authority asking it to supply the information, but what happens if someone goes into an authority, to where all the information is available for the public to see, studies the information, decides that he needs a copy, but there are no copying facilities in that room? Will there simply be access to the information where the records are kept, or will there also be facilities for members of the public to take copies, which they may need to take away so that they can carry out further work? Presumably many inquiries will relate to particular difficulties in cases with which individuals are concerned.

Those are the two serious issues on which I have questions for the Minister. Subject to those, my party is content that these regulations are here and we certainly do not wish to prevent them coming into force or to hold them up.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Shadow Minister, Environment, Food & Rural Affairs

My Lords, we on these Benches welcome the opening up of environmental information. We often ask for clarification on what will be in the public domain. With that in mind, I ask the Minister under what Acts will exemptions be made to the requirement to provide such information? I have in mind the recently passed uranium enrichment regulations that would, no doubt, provide for prior rights to preclude the public from knowing what is happening in some nuclear establishments as regards the environment. He may not have that list to hand, but I would be grateful if he could write to me saying what is excluded from these regulations by way of Acts of Parliament.

My second point concerns a matter on which his department has had some discussion. I would be grateful if the Minister could clarify the position. What effect does the Minister believe that these regulations would have on local record centres, particularly with regard to the very valuable work that they do in collecting information about biodiversity? I am sure that the Minister will recall that last year the information on farmland birds, issued by the Government, contained some gaps. It was explained to me that all the information about bird numbers, on which Defra relies, is collected by volunteers and because of the foot and mouth disease crisis, they had not been able to supply as much data as usual.

What impact does the Minister believe that these regulations will have on the volunteers, who belong to a voluntary society and who collect the data which are collated by the local record centre? I want to highlight to the Minister a number of areas under threat. It is possible that there could be a breakdown of trust between the volunteers and local record centres in relation to particularly sensitive species—for example, rare orchids or rare birds nesting. The volunteers may believe that the information should not be widely available to the public, whereas the record centres may be obliged to put it in the public domain if requested by egg collectors. Perhaps the Minister will address that issue.

Local record centres depend heavily on volunteer input, and they cannot afford to pay for much of the information. I believe that their funding has not been increased, even in line with what was recommended by the Commons committee that considered the matter in 2000. That committee recommended that for local record centres to fulfil their obligations under the new biodiversity strategy, which the Government brought in, they would need increased funding. I do not believe that that recommendation has ever been acted on. Yet again the Government are bringing in albeit welcome regulations, but without local record centres, which play such a vital role in supplying biodiversity information to the Government as well as to the public, having a reliable idea about their future funding.

Those are my concerns. Much of how these regulations will work will still be left to guidance. I believe that the Minister's department has had meetings with the National Biodiversity Network. I should be very grateful for some idea of the outcome of those meetings and whether the network is indeed happy with the current situation.

Photo of Lord Hunt of Chesterton Lord Hunt of Chesterton Labour

My Lords, I welcome this document which I was reading this morning. I declare an interest in having used a lot of environmental data, as chairman of an environmental company and of an NGO—ACOPS—and as an academic.

I believe that the UK scientific and technological world in environmental work is second to none. Indeed, part of the reason for that is because environmental data are widely available in the UK. The position is considerably better than in some countries in Europe. So my first point is whether the kind of policy that is set out in this document will be the same in other European countries. In fact, it would be very interesting to have an independent review of the availability of the environmental data in the UK in comparison with other European countries.

My second point relates to a specific element of this document. It contains a clause which refers to a point made earlier about transparency of communications within the public authorities providing the data. One of the most important points to understand in an organisation producing data is how the data are calculated. These are internal calculations and are more transparent in the UK than elsewhere, but it should still be reasonable to ask how, for example, certain levels of pollution are calculated or, indeed, how wind speeds were calculated. Sometimes there is frustration about that level of transparency.

My third point also comes back to the points made earlier about the question of costs. Having been the chief executive of a government agency, which had to make a profit, I know a little about that and the question of the profit. Progressive views in the UK have meant that the charges made by many government agencies in the UK are lower than those of our European colleagues. That is a difficulty.

However, there is an issue. I gather from the document that this rather ticklish area, which in the past may have been looked at by the DTI through its intellectual property organisation or by the Treasury which has also produced many documents on the levels of profitability of government agencies, will now be in the hands of the Information Commissioner. How will that person interact with these other government bodies and will there be some more uniform policy? At the moment the latest word that I have seen comes from the Treasury.

What will be the staff of the Information Commissioner? He will be an important person running an important body. Will he or she have scientific staff and how will they work with these other government agencies? The blanket statement that "intellectual property will be preserved" covers a broad area and a lot of people will want to pick at that. Is that going to be in the hands of the DTI or will it be in the hands of the Information Commissioner? Perhaps that point could be established.

My final point is about the curious anomaly that environmental data are often made available, particularly through the government research councils, to researchers. But for some reason—perhaps just for economy—it is difficult to make those data available to undergraduates and students. Therefore, the availability of the environmental data to the educational world also needs to be considered.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Food, Farming and Sustainable Energy)

My Lords, I am grateful for the general support for these regulations. I shall attempt to answer the questions raised. In the discussion of the dissemination and availability of information the noble Lord, Lord Dixon-Smith, raised the issue of public records and in particular of e-mails. Public records—this also relates to some of the points raised by the noble Baroness, Lady Miller, about keeping public records—must be kept and not destroyed. That would include those on e-mail.

The only destruction permissible would in any case be in the context of a document management process, including e-mail, that would have had to have been stated. That would have to include requirements to archive public records; it would also set out in what circumstances and timescale e-mails could be destroyed. That would not include the destruction of original records, of base data on which decisions were based or other information about decisions that had been made. So although episodic e-mails may be wiped out every three months, or even every three days, those on which decisions are based would be required to be kept, just as normal written documents would be.

On charging and how it is controlled, which the noble Lord also raised, the Information Commissioner would consider how to do that, advising public authorities where he thinks their charging process unreasonable. The draft guidance will be subject to consultation. In the circumstances described by the noble Lord, where someone goes in to photocopy something the actual cost will be charged. There are exceptions to that only where the organisation itself charges for that information and its finances are based on its method of charging.

On the point raised by the noble Baroness, Lady Miller, about public records and biodiversity recording in particular, the regulations cover organisations only so far as they fulfil public functions or are under the control of public authorities. They therefore do not extend to voluntary groups or individuals who record biodiversity information. Voluntary groups will therefore not be covered, but recording centres and organisations who are legally responsible for collecting information will be covered. However, there will be no requirement on them to issue information that is currently protected. Exceptions may be used to withhold information, such as the habitat of a rare species of bird, which we would not want to be in the public arena.

The recording centres themselves and the National Biodiversity Network, to which the noble Baroness referred, aim to disseminate information wherever possible in any case, and are committed to doing that responsibly, withholding information only where it is in the public interest to do so. The regulations will not make a significant difference to that.

The noble Baroness asked which Acts of Parliament are exempt. No Acts of Parliament as such are exempt; Regulation 5(b) overrides all other legislation; but the other regulations provide some exceptions, including those for national security purposes. The phrases used are those used in other legislation concerning national security and commercially sensitive information.

My noble friend Lord Hunt asked what happens in other EU countries. Other EU countries are also required to transpose the directive and most of them individually and all of them collectively through the EU are subscribers to the convention. Therefore, parallel arrangements will have to be set up in other EU countries, although I accept that some of them are starting from some way back concerning current availability of information.

My noble friend and the noble Baroness also asked about resources and funding and the availability of information being limited by a lack of funding. There are no funding implications of the regulations because we intend to inculcate a culture change in the approach to how information that is there should be made available. That ought to be part of the normal process of the bodies' operations. The active dissemination of information should also be included, which may be a function that some public authorities do not currently carry out, but we assume that that can be done within existing budgets unless any particular problems arise.

The whole point of the regulations is that the normal processes should subsume the need to make information available and accessible. If we can achieve that, other efficiencies will often emerge within public authorities in any case.

On Question, Motion agreed to.