Section 62 — Power to make provision relating to environmental information

Freedom of Information (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:15 pm on 24th April 2002.

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Photo of Murray Tosh Murray Tosh Conservative 5:15 pm, 24th April 2002

Amendment 74, in the name of Bruce Crawford, is grouped with amendments 75, 10 and 11.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

Members who have been following the progress of this bill will be aware that the SNP has taken a close interest in incorporating the provisions of article 5 of the United Nations Aarhus convention. I have studied what Jim Wallace said in response to Michael Matheson at stage 2. It was interesting that the minister noted that

"article 5 lists a wide range of activities for public authorities, all of which promote ... dissemination of information."—[Official Report, Justice 1 Committee, 5 March 2002; c 3343.]

It is true that the provisions of article 5 are wide ranging, but they are also vital with regard to the provision of, and ready access to, up-to-date, transparent and relevant environmental information for the general public.

At stage 2, the minister argued that because of the nature of some of the activities listed in article 5, it would be better for its provisions to be addressed administratively. I would like to put that to the test and to examine more closely the specific provision that environmental information should progressively be made available on the internet. I would like to examine the Executive's plans for that.

Will the minister please tell us exactly what administrative processes will be employed? When can we expect members of the public to be able to access via the internet the type of information that is described in article 5? The minister argued that it would be better to await the revised European Commission directive on public access to information. That directive, which will come into force in December this year, is expected to translate the Aarhus convention into European Union legislation. What I find mystifying, given the minister's view that we should await the directive to deal with the Aarhus convention, is that the Executive is cherry picking articles 3, 4 and 9 of the convention for inclusion in the bill, but is not prepared to include article 5.

In any case, what guarantees can the minister provide that the European Union will translate the important provision that is contained in article 5 into the legal framework designed for member states? If that does not happen, when can we expect the provision to be brought into Scots law? I seek such guarantees because the Executive does not have a good track record on infraction proceedings brought against it by the European Commission for failure to implement EU law.

If the directive deals successfully with translating the convention into the EU framework, what instrument would the Executive employ to incorporate it into Scots law? Whatever instrument is finally applied, the desired effect will not be achieved as speedily as it would be if the Parliament were to agree to amendments 74 and 75.

It is difficult to understand why the Executive has so far resisted including article 5, given that all that we seek to do is to provide the Executive with the power to make provision if it feels that it is appropriate to do so. Is the real reason for the Executive's concern the fact that it considers that such provisions go a step too far, because section 4 of article 5 requires every country—including the UK, which has already signed up—to publish and disseminate a national report on the state of the environment? Would that tie the Executive into commitments that it does not wish to make? I might be wrong, and if so, perhaps the minister will let me know how and when the Scottish Parliament will be provided with an opportunity to debate a desperately needed report on the state of the environment in Scotland. If the minister can tell me that the Executive will produce a report and hold a debate, and when it will do so, I will reconsider my position on amendments 74 and 75.

I move amendment 74.

Photo of Robin Harper Robin Harper Green

I thank the clerks for assisting me in drafting amendments 10 and 11, which can be considered together. I propose the amendments in order that regulations on environmental information, which will fulfil Scotland's obligations as a signatory to the Aarhus convention on access to environmental information, which is referred to in section 62 of the bill, should come into force no later than one year after the bill is passed.

Amendment 10 amends section 62 such that Scottish ministers would be obliged to introduce the regulations on environmental information no later than one year after section 62 comes into force. Amendment 11 would amend section 72 regarding commencement, such that section 62 would come into force when the bill receives royal assent. Taken together, amendments 10 and 11 would therefore ensure that regulations on environmental information would come into effect no later than one year after the bill is passed.

In summary, the amendments would ensure that access to environmental information would keep up with access to other kinds of information. Any delay in providing access to environmental information would result in a two-tier system and a great deal of public confusion.

I hope that members will agree that I am proposing a very reasonable modification to the bill. I am keen to ensure that the freedom of environmental information that was agreed to when the Aarhus convention was signed in 1998 is not left behind when access to other types of information is given. At stage 2, the minister confirmed to the committee that the amendments would require the new Aarhus-compliant environmental information regulations to come into force within a year of royal assent. However, he argued against the amendments on the grounds that they would require the Executive to introduce the environmental regulations within a year of the Freedom of Information (Scotland) Bill receiving royal assent and that the Executive might not be able to do that because something unforeseen might come up. What that something might be, I have not the faintest idea.

Amendments 10 and 11 are intended to insist that the environmental information regulations are introduced within a year and that the Executive employs sufficient resources in advancing access to environmental information. We cannot allow freedom of environmental information to be left behind. It is not acceptable for the minister to say that there might be a delay.

I urge members to support amendments 10 and 11.

Photo of Lord James Selkirk Lord James Selkirk Conservative 5:30 pm, 24th April 2002

We are minded to support amendments 74 and 75. The Aarhus convention will require states to produce emissions inventories. To do that, the bill should incorporate article 5 of the Aarhus convention, which relates to the collection and dissemination of environmental information.

The bill mentions only articles 3, 4 and 9, and there are substantial concerns that any pollution register that is introduced in Scotland will not be comprehensive and detailed enough to comply with the requirements of the Aarhus convention. Paragraph 1(c) of article 5 states:

"In the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected."

That is a strong and important safeguard for the community, should there be an adverse emission or should something arise with no notice.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Amendments 74 and 75 address two subjects that were discussed at stage 2. I am sorry to disappoint, but the Executive's position has not changed.

On amendments 10 and 11, I signalled clearly during stage 2 the Executive's intention that EIRs will be in place by the end of this year. That is well within a year of the expected date of royal assent. However, we consider it wholly inappropriate that the legislation should require ministers to bring forward that information within that period regardless of what circumstances might intervene.

Robin Harper said he was not sure what any unforeseen circumstances might be. Of course, if there are no unforeseen circumstances then his wish will be granted, because the regulations will be in place by the end of the year. There could be legitimate reasons why it is not possible to implement the regulations within 12 months. For example, a revised European Community directive on access to environmental information is progressing through the final legislative stages in Brussels. Issues arising from that might require us to amend the detail of the regulations. Similarly, given the complexity of the matters involved, it is not sensible to presume that no legal difficulties could arise.

I cite those examples not because we expect any problems, but because nobody can be sure that there will not be any. As I have said, ministers are committed to the early implementation of the regulations and fully expect that to happen within one year of royal assent. However, it makes no sense to tie our hands in the way that is set out in amendments 10 and 11. I therefore ask Parliament to reject amendments 10 and 11.

Amendments 74 and 75 would extend the powers that are proposed at section 62 of the bill to cover article 5 of the Aarhus convention. Again, the issue has been given careful consideration but we remain convinced that it would not be appropriate.

Articles 3, 4 and 9 of the Aarhus convention, which are referred to in the bill, relate to access to information and therefore seem appropriate. Robin Harper says that it is important that environmental information is not left behind, and the Executive made a conscious choice to import section 62 so that we could give the issue some impetus.

Article 5 of the Aarhus convention lists a range of general duties relating to the proactive dissemination of information. Because those duties are so generally drawn, they are most effectively addressed administratively. For example, article 5 provides that authorities should make environmental information available to the public in a transparent manner. That does not translate readily into clear statutory obligations, but there is no doubt that it can be delivered effectively on an administrative basis. Formalising that type of obligation would not add value, and it could complicate matters by subjecting authorities to unclear and unenforceable legal duties.

It is important that we take account of the revised directive on freedom of access to environmental information. That will translate the Aarhus convention into a specific legal framework designed for European member states. As I have indicated, that directive is nearing the end of its development and should come into force by December 2002. The directive will adapt the Aarhus provisions to a European context and, as a result, will place much clearer and more specific legal duties on member states. Those duties will be much easier to transpose.

Bruce Crawford asked what information could be made available more progressively on the internet. Publication schemes that cover all categories of information will create a legal obligation on all authorities that are subject to the bill, including the Executive, to set out all information that is to be published. There is no doubt that the bill, which the commissioner will promote, will increase the proactive disclosure of all information.

I ask the Parliament to oppose amendments 10 and 11, as although they would commit ministers to a deadline that we aim not only to meet, but to beat, they would not allow for any problems that might arise. I also ask the Parliament to oppose amendments 74 and 75, which would require us to impose unclear and imprecise legal duties on public authorities. Such duties are best delivered administratively—many already are. Formalising of those obligations would be best done in the forthcoming directive.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

It is difficult to wind up when the minister has provided no information that develops the argument from stage 2. I asked several questions to which the minister could have given answers that would help us to understand what the Executive is trying to achieve. At stage 2, Jim Wallace told us that, administratively, we could start to develop processes for providing information on the internet. Today, we had a bit of waffle that explained nothing about where we are going.

I also asked the minister when the Parliament could receive a report with a detailed examination of the environmental situation in Scotland. Had the minister told us the date on which we would receive such a report, the SNP might have withdrawn amendment 74, but we have had no debate, the minister has provided no answers and no progress has been made. I press amendment 74.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 74 be agreed to. Are we agreed?

Members:

No.

Division number 19

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McLeod, Fiona, Monteith, Mr Brian, Mundell, David, Paterson, Mr Gil, Reid, Mr George, Robison, Shona, Russell, Michael, Scanlon, Mary, Scott, John, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew, Young, John
Against: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Fitzpatrick, Brian, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 47, Against 64, Abstentions 0.

Amendment 74 disagreed to.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

As amendment 75 is consequential on amendment 74, I will not move it.

Amendment 75 not moved.

Photo of Murray Tosh Murray Tosh Conservative

Amendment 10, in the name of Robin Harper, was debated with amendment 74.

Photo of Robin Harper Robin Harper Green

I shall speak briefly to amendments 10 and 11—

Photo of Murray Tosh Murray Tosh Conservative

No; you have already done that. I just want to know whether you will move amendment 10.

Amendment 10 moved—[Robin Harper].

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 10 be agreed to. Are we agreed?

Members:

No.

Division number 20

For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Fabiani, Linda, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, MacKay, Angus, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Paterson, Mr Gil, Reid, Mr George, Robison, Shona, Russell, Michael, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew
Against: Aitken, Bill, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fergusson, Alex, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harding, Mr Keith, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McGrigor, Mr Jamie, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, John, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan, Young, John

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 33, Against 78, Abstentions 0.

Amendment 10 disagreed to.