Amendment 108A

Environment Bill - Committee (4th Day) – in the House of Lords at 3:30 pm on 30th June 2021.

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Lord Rooker:

Moved by Lord Rooker

108A: Clause 42, page 25, line 23, leave out “26(1) or”Member’s explanatory statementThe amendment would exclude from the prohibition on disclosure in Clause 42(1)(a) information obtained by the Office for Environmental Protection under Clause 26(1).

Photo of Lord Rooker Lord Rooker Labour

In moving Amendment 108A, I will speak also to the other amendments in this group, all originally tabled in the name of my noble friend Lord Wills, who regrets that he is unable to be with us today. The first four refer to Clause 42, and the final one to Clause 45.

My main concern is the effect of Clause 42 on the right of access to environmental information under the Environmental Information Regulations 2004—the EIR. Clause 42(1) prohibits the disclosure of several classes of information by the office for environmental protection. These are: information provided to the OEP to assist it with its functions by a body with public functions under Clause 26(1); and specified information about OEP enforcement action, including any information notice or decision notice it serves, any related correspondence with an authority, and information provided to it by the authority.

Clause 42(2) describes the circumstances in which disclosure to the public will be permitted. These are: if the body supplying the information, the OEP or authority, consents—but this does not apply to an information notice or a decision notice—or if the OEP has concluded that it intends to take no further steps in relation to the matter. That is set out in subsection (2)(h).

Clause 42(3) prohibits disclosure of certain information by public authorities, particularly those which are the subject of OEP enforcement action. Clause 42(4) provides exceptions to the prohibition. None of the exceptions to the prohibitions under Clause 42 permits disclosure for the purpose of complying with the EIR or the Freedom of Information Act.

However, the Explanatory Notes set out an entirely different view. Paragraph 365 says that Clause 42

“does not override the EIR which will still apply to the OEP and other public bodies. The OEP will be required to consider requests for disclosure of information made under the EIR on a case by case basis, including assessing whether any appropriate exception will apply.”

Paragraph 366 adds:

“This clause will also not override or disapply other existing legislative provision on public access to information such as the Freedom of Information Act 2000”.

This second statement is plainly wrong. Section 44(1)(a) of the Freedom of Information Act exempts from access any information whose disclosure

“is prohibited by or under any enactment”.

This is an absolute exemption to which the Freedom of Information Act’s public interest test does not apply. Any statutory prohibition which applies to the information overrides the FoI right of access.

The position under the EIR is more complicated. Regulation 5(6) of the EIR states:

“Any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply.”

Prior to Brexit, that would have guaranteed that a statutory prohibition could not undermine the EIR right of access, as the regulations implement an EU directive. The supremacy of EU law meant that it could not be set aside by domestic law. That principle no longer applies.

The EIR are now retained EU law. As I understand the position, from various briefings and from our own discussions, it is that, following the implementation period—IP—completion day:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

That is in Section 5(1) of the European Union (Withdrawal) Act 2018.

“So domestic law passed after IP completion day will trump provisions in retained EU law that are of EU origin and which would have benefited from the principle of supremacy before IP completion day”— that is the legal opinion given out by firms such as Gowling WLG.

The Bill’s prohibitions on disclosure postdate the implementation period and are clearly incompatible with the EIR rights of access. So long as the prohibitions apply, they appear to override the EIR right of access to the information concerned. Let us take an example. The OEP will be prohibited from disclosing any information supplied to it by a body with public functions under Clause 26(1). This requires such a body to provide information to the OEP if it asks for it in connection with its functions. Substantial classes of information could be affected, given the OEP’s broad functions. These, of course, include monitoring progress towards improving the environment, meeting environmental targets and implementing environmental legislation, as well as advising Ministers and investigating failures by public authorities to comply with environmental law.

Let us suppose that the OEP receives a request for the underlying data on which it has based a statement about air or water quality. If that information has come from a body with public functions, it will be subject to the prohibition. The OEP could disclose this after it had decided to take no further steps about the matter—but when would that happen? Monitoring is an ongoing process. The publication of an annual monitoring report under Clause 27(7)—which is unlikely to contain the complete monitoring data—will not mark the end of the OEP’s involvement. The problem revealed by the monitoring may persist for years, endangering human health or the environment. The OEP may need to advise the Minister, perhaps repeatedly, to address the matter. It may need to investigate any failure to comply with environmental law. The more serious the problem, the longer the prohibition will continue to prevent disclosure—an absurd situation.

The information, of course, might be disclosed if the body supplying it consents; but it may not do so, particularly if the information shows that the problem is the result of its own failings. The withholding of such information would be a serious blow to the public’s right to know, to informed public debate and to public confidence in the OEP. It is almost inconceivable that such data could be withheld under the EIR. To do so, an authority would have to show that disclosure would “adversely affect” a specified interest, consider whether the public interest required disclosure, and apply

“a presumption in favour of disclosure”.

If the information concerned emissions, significant EIR exceptions, such as those for commercial confidentiality or the interests of a person supplying information voluntarily, would be disapplied altogether. How does a blanket prohibition on disclosure, which takes no account of the public interest, advance environmental protection? And by the way, I realise that a member of the public could go with an FOI request direct to the body concerned, but how do they know what the body is going to be? That is the point: we will not know unless people are told.

The same obstacle would apply to information which an authority had supplied to the OEP in the course an OEP investigation. It could be disclosed only when the OEP had decided to take no further action or the body supplying the information consented. Again, this contrasts this with the EIR approach. EIR regulation 12(5)(b) allows an authority to withhold information if disclosure would

“adversely affect the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature”.

The Information Commissioner’s guidance highlights the “very wide” scope of the “course of justice” limb of this exception, which it says applies to information about law enforcement investigations or proceedings and civil and criminal investigations and proceedings. This is how information the disclosure of which might undermine law enforcement is protected by other regulators, including the Environment Agency, local authorities, the Health and Safety Executive and the police. To withhold information, they must show that disclosure would adversely affect the course of justice and that, on balance, the public interest favours confidentiality.

In 2017, the tribunal that deals with EIR and FOI appeals ruled on a request relating to a factory at which a fatal explosion had occurred. It held that a request for the findings of an earlier investigation into the factory should be denied because the information was likely to form part of the prosecution case, and media coverage of that investigation would have compromised the remaining police interviews and risked jeopardising a fair trial. However, in a 2007 decision involving a fatal outbreak of food poisoning, the tribunal found that disclosure in that case would not affect the trial. It commented:

“A blanket refusal to disclose all potentially relevant information may well not be justified. A public authority … ought to give careful consideration to the potential effect on the criminal proceedings of the particular information being requested ... but if, on a sensible reading of the documentation in question, its disclosure would not adversely affect the prospects of a fair trial, then the fact that the information has some connection with the subject matter of a prosecution will not be sufficient justification for nondisclosure ... on the special facts of this case, the disclosure ... would not have adversely affected the accused’s ability to have a fair trial.”

Amendment 108A would remove the reference to Clause 26(1) from Clause 42(1)(a). Information provided to the OEP by bodies with public functions could then be disclosed on request, subject to the EIR exceptions. Amendments 108B and 108C would permit disclosure for the purpose of complying with the EIR or FOI Act or subject access under data protection legislation. This is what the Explanatory Notes say is already the position. If so, the Government should have no objection to stating that on the face of the Bill. If the prohibitions in fact override EIR right of access, the UK will be in breach of Article 4 of the Aarhus convention, which requires the UK to provide a statutory right of access to environmental information. It does not permit information to be withheld on a class basis. The public interest in disclosure must be taken into account and exemptions applied in a “restrictive way”.

Clause 42(7) addresses a separate issue. It refers to the information to which Clauses 42(1) and 42(3) would apply, disregarding the exceptions to these prohibitions. The clause provides that, where information is “environmental information”, it will be considered to be held

“in connection with confidential proceedings”.

This would bring it within the range of an exception in EIR Regulation 12(5)(d), which states that

“a public authority may refuse to disclose information to the extent that its disclosure would adversely affect ... the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law”.

Clause 42(7) would establish that whatever was done with the information would be treated as involving confidential proceedings for the purpose of this exception. This would increase the chances of such information being withheld under this exception under the EIR. I assume this could only occur once the prohibition was lifted and the EIR right of access became available. However, paragraph 364 of the Explanatory Notes says that this would occur while

“enforcement proceedings by the OEP are ongoing”.

If the EIR right of access in fact continues while enforcement proceedings are under way, perhaps the Minister could explain what other disclosures the prohibition is meant to prevent. The OEP would still have to show that disclosure would “adversely affect” the confidentiality of those proceedings. This might not be difficult, as the disclosure of information in confidential proceedings is very likely to undermine the confidentiality of the proceedings. However, this provision is subject to the EIR public interest test.

The consideration of some of this information—for example, on monitoring—would probably not normally be regarded as a confidential proceeding. However, it would become one as a result of Clause 42(7) making it easier to withhold data, but such information is precisely what should be made public under the EIR. Amendment 108D would omit Clause 42(7).

In conclusion, Clause 45(1) defines the term “environmental law” but Clause 45(2) excludes matters relating to

“disclosure of or access to information” from that definition. The Explanatory Notes say that the provision is intended to avoid overlap between the OEP’s role in dealing with serious failures to comply with environmental law and Information Commissioner’s Office investigations into failure to comply with the EIR. However, the exclusion is much wider than is necessary for that purpose. It would apply to matters for which the Information Commissioner has no responsibility, such as the public registers of information required under the Environmental Protection Act 1990 on air pollution, waste disposal, contaminated land, street litter, genetically modified organisms and waste disposal at sea. The OEP should be able to investigate serious failures relating to these requirements: doing so could not possibly tread on the Information Commissioner’s toes. My Amendment 114A would limit this exclusion to the functions of the Information Commissioner under the EIR and apply only to the OEP’s law enforcement functions. For everything else, access to information would remain within the definition of environmental law.

I much regret the length of time that I have had to spend on the details of quite a technical part of the Bill. The Bill is 250 pages, and I can assure your Lordships that my first draft of this speech was considerably longer than the one that I have delivered. I am incredibly grateful for the help of the Campaign for Freedom of Information, which has looked forensically at this part of the Bill. Freedom of information is at risk and I hope for a detailed response from the Minister to show why I am wrong. I beg to move.

Photo of Lord Lucas Lord Lucas Conservative 3:45 pm, 30th June 2021

My Lords, I entirely share the concerns expressed with such clarity by the noble Lord, Lord Rooker. I am a total devotee of freedom of information; indeed, I managed to get a Second Reading of my Freedom of Information Bill in the House of Lords on 10 February 1999, rather in advance of the Government’s own. As the Minister knows from our previous discussions, I am also a total devotee of openness. Both those concerns of mine are engaged by the Bill as it is now written.

When it comes to environmental information, we ought to be more open, not less. Environmental information is so much a public matter and of such widespread individual public concern that we should not be looking, simply for the convenience of the system, to hide it away. I very much look forward to the Minister’s explanation of why the Bill is written as it is.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs)

My Lords, I hope to speak quite briefly on this issue. I am grateful to my noble friend Lord Rooker for spelling out the case so thoroughly and for raising the important question of transparency. He has rightly underlined the importance of open government and of the OEP being seen to act in the public interest. That is particularly true on environmental matters, where in the past there has been a tendency to cover up environmental damage and pollution, and those accused have deliberately drawn out proceedings to delay prosecution.

As it stands, the Bill contains two prohibitions on disclosure of information. The first appears to override the existing right of access to information under the environmental information regulations. The second appears to contravene the Aarhus convention, the international treaty that underpins the EIR.

Under the Bill, the OEP has a clear obligation to monitor progress in environmental protection and investigate complaints of serious failure by public bodies, but it seems that the OEP could not disclose information obtained for these purposes unless the supplier of the information consented. Similarly, information obtained during the OEP’s enforcement activity would be kept secret until the OEP decided to take no further action. That appears to be much more of a blanket ban than the current provision of the EIR, which limits disclosure only if it would

“adversely affect the course of justice”.

The Explanatory Notes take a different view, claiming that Clause 42 is compliant with the Aarhus convention, but it creates a caveat based on a “confidentiality of proceedings” exception. It is not clear how that will be defined.

To avoid any confusion on the important issue of public access to information, and to protect the OEP from accusations of unnecessary secrecy, it makes sense to clarify in the Bill that the Environmental Information Regulations 2004 and connected freedom of information Acts take precedence. We therefore welcome the amendments in the name of my noble friend Lord Wills that have been ably moved by my noble friend Lord Rooker. I hope the Minister will see the sense in these amendments, which would provide useful clarification of our obligations under national and international law.

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

I thank the noble Lord, Lord Rooker, for his introduction. He is right to emphasise the importance of transparency, a point made equally well by my noble friend Lord Lucas and the noble Baroness, Lady Jones.

I reiterate the position on information disclosure for the OEP. The Government have been clear that the environmental information regulations and the Freedom of Information Act will apply to information held by the OEP and public authorities. The Bill does not in any sense override that legislation. The OEP would have to consider any request against the relevant legislation on a case-by-case basis.

The OEP will assess whether any exemption or exception to the relevant regime applies to the information. If so, it will consider whether a public interest weighing exercise is required under that exemption. If a public interest test is required, it will carry out a balancing exercise before deciding whether the public interest requires that the information should be disclosed or withheld.

Turning to Amendments 108A to 108D, tabled by the noble Lord, Lord Wills, although I agree that it is important that the OEP operates transparently, it must be allowed the discretion necessary to operate effectively. The OEP’s enforcement framework has been designed to resolve issues as effectively and efficiently as possible. To do so, it is important to have a safe space where public authorities can confidently share information and allow the OEP to explore potential pragmatic solutions before issuing formal notices. The noble Lord’s proposals would effectively remove that forum, meaning that public authorities might prefer to advance to more formal stages where information disclosure exemptions may apply due to confidentiality of proceedings. That would undermine the framework and result in slower resolution and poorer value from public funds.

On Amendment 114A, Clause 45(2)(a) excludes the disclosure of or access to information from the OEP’s remit. These matters are explicitly excluded in order to avoid overlap between the remit of the OEP and that of the Information Commissioner’s Office. This is further clarified in paragraph 383 of the Bill’s Explanatory Notes. The existing drafting of this provision allows greater flexibility to ensure that overlaps are avoided. Not only does it allow the OEP and courts to decide on the meaning of the exemption to the OEP’s remit on a case-by-case basis; it accounts for any future changes to relevant legislation that may cause overlap between the two bodies. The Information Commissioner’s Office will still have the remit to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

I hope that answers the noble Lord’s questions and I ask that he withdraw his amendment.

Photo of Lord Rooker Lord Rooker Labour

My Lords, the Minister has spent just three minutes on this crucial part of the Bill. I will not try to respond now; I will take advice on what he said, but we will no doubt come back to this issue on Report. I beg leave to withdraw the amendment.

Amendment 108A withdrawn.

Amendments 108B to 108D not moved.

Clause 42 agreed.

Amendment 109 not moved.

Photo of Baroness Watkins of Tavistock Baroness Watkins of Tavistock Deputy Chairman of Committees

We come to the group beginning with Amendment 110. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.

Clause 43: Meaning of “natural environment”