HL Deb 17 December 1992 vol 541 cc684-90

1.42 p.m.

Viscount Goschen rose to move, That the draft regulations laid before the House on 8th December be approved [15th Report from the Joint Committee]

The noble Viscount said: My Lords, the regulations give the public new legal rights of access to environmental information. As long ago as 1984 we accepted a recommendation by the Royal Commission on Environmental Pollution that there, 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".

The Government have consistently supported the principle that the public should have rights of access to environmental information and we have demonstrated our commitment by establishing public registers of environmental information through successive legislative provisions. The regulations provide additional rights of access to environmental information not held on public registers as well as implementing European Community Directive 90/313 on the freedom of access to information on the environment.

The regulations refer to the bodies covered as "relevant persons". They include a wide range of public bodies with environmental responsibilities and bodies controlled by them with public responsibilities for the environment. The Department of the Environment, for example, is a relevant person as is the National Rivers Authority, English Nature and all local authorities with environmental responsibilities. The range of bodies covered is therefore very wide. It is impracticable, however desirable, to include a full list of bodies in the regulations themselves.

The basic approach followed in the draft regulations is to apply their requirements to environmental information which is not already required to be provided on request under any existing statutory provision—essentially information not currently required to be kept on statutory registers. Any person may request that environmental information from bodies covered by the regulations. Environmental information is widely defined, and includes information about the state of any water or air, flora or fauna, soil or the state of any natural site or other land. The regulations will apply to all such environmental information held by a body once the regulations are in force. There is no requirement for bodies to collect information for the sole purpose of meeting a request. If they do not hold the information, therefore, they are not required to take steps to provide it.

Retrieving and supplying information involves expenditure by the bodies concerned. There is therefore a discretionary power in the regulations which may be used to make a charge in respect of the costs reasonably attributable to the supply of information. The payment of a charge can be made a condition of supplying information. Holders of information can therefore make a charge to cover their costs and those requesting information may only be charged a reasonable amount. Inspection of statutory public registers will remain free of charge.

Relevant persons will have a discretion not to provide certain types of confidential information. That covers such matters as information relating to internal communications or to commercial or industrial confidentiality matters, or relating to matters affecting international relations, national defence or public security. Relevant persons will be under a duty to protect other types of confidential information. That includes any of the types of information which may be treated as confidential under the regulations and which are already the subject of restrictions on disclosure. Other types of information which must be protected include personal and volunteered information, unless the supplier of the information agrees to its disclosure or it is otherwise authorised.

Finally, let me briefly deal with the question of the rights of redress for a person who is refused information. Under the regulations, everyone refused information has a right to that refusal being in writing and the reasons for the refusal to be specified. That should establish clearly why the information has been refused but it will also provide an opportunity to resolve any misunderstandings that may have arisen. If, however, a person requesting information believes he or she has been wrongfully refused then he or she may seek judicial review of the decision concerned or pursue the matter through a private action in the courts. It should be of some reassurance to suppliers of information who feel that they have been financially damaged by its disclosure that they could if they wish pursue a claim for damages by a private action. It will be the responsibility of every relevant person to be open and fair in the way requests for information are dealt with. They must do everything possible to explain why, if it really is necessary, information cannot be supplied.

I said at the beginning of my remarks that the Government have taken many positive steps to follow up the Royal Commission on Environmental Pollution recommendation in 1984 for greater public access to environmental information. The regulations represent another positive step by increasing the public's rights of access. I beg to move.

Moved, that the draft regulations laid before the House on 8th December be approved [15th Report from the Joint Committed].—(Viscount Goschen.)

Baroness Hilton of Eggardon

My Lords, we welcome the regulations and I thank the Minister for his detailed description of them. It is a small increase in access to information on the environment and is perhaps a tiny step towards more open government. We particularly welcome the obligations on relevant persons to reply within two months at the maximum and also to give reasons for their refusal. However, I ask the Minister to give more details of the manner in which that may be pursued through judicial review or through the courts.

There are specific areas which concern us. For example, the vagueness of the reasonableness of the amount that may be charged to enquirers leaves open the opportunity to level charges so high that they may deter individual enquirers. I am familiar with the way that the Treasury insists that one loads overheads, costs of buildings and other factors on to what it considers may be a reasonable amount. Can the Minister say who will ultimately determine what a "reasonable amount" will be? Is that, again, a matter for judicial review or for the courts?

There are even more substantive reasons for concern about the regulations. First, the excuses that may be tendered for refusing to disclose information include, among other matters, commercially confidential information, information relating to international affairs, matters subject to a local planning enquiry, or a hearing to supply information. The last is an extension of the European directive which seems to apply only to matters which relate to criminal or civil actions in the courts. I ask the Minister to explain in that respect why they have extended the provisions of the directive. These exceptions are set so wide that almost any refusal to supply information could be justified as reasonable and the breadth and number of these loopholes make it all the more serious that there is a lack of a structured appeal system.

Article 4 of the European Community directive requires that there should be a "judicial or administrative review" if a person considers a request for information has been unreasonably refused or ignored. The Government have allowed for the possibility of judicial review pursued through the courts. But, as we know, judicial review is enormously expensive and lawyers have made fortunes already in the past out of definitions of what might be considered "reasonable" or "unreasonable".

As I understand it, judicial review cannot summon witnesses and is restricted to examining procedural fairness. It does not go to the substance of the case. As issues of environmental protection are so vital, it would have been preferable if the Government had set up an administrative review system as the first stage at least of an appeal. Overall these regulations are welcome and they are a first step towards greater openness on environmental matters. But I hope the Government will consider that this should be the thin end of a wedge that will begin to prise open further information about these vital matters.

Lord Addington; My Lords, I have two points to make about these regulations. First, we on these Benches are very much in favour of more openness but are rather sorry that it requires regulations to have open government and freedom of information.

My second point concerns the appeals procedure. The appeals procedure is inadequate for the majority of requests which will arise under the directive. Appeals will take the form of a judicial review. This form of review is immensely expensive and time consuming and it does not allow the court to examine whether a request for information was, unreasonably refused, or ignored or … inadequately answered". In an action for judicial review all that is determinable is whether the authority's refusal was procedurally unfair; in other words, the court can decide only whether the procedure followed by, for instance, a Minister in deciding to refuse access to information was fair. The court cannot investigate whether the information requested actually fell into one of the exceptions. The central question of whether a request was unreasonably refused, ignored or inadequately answered cannot be addressed under these criteria.

Furthermore, judicial review does not allow in the majority of cases for cross-examination of witnesses or the discovery of documents. It will be impossible for an applicant to bring sufficient evidence to oppose a claim, for example, of commercial confidentiality which is felt to be groundless or suspected of being an attempt to cover up embarrassing information.

Lord Jenkins of Putney

My Lords, unless I am mistaken—perhaps when he replies the noble Viscount will tell me whether that is the case—this type of legislation is treated on exactly the same basis as if it were a statutory instrument stemming from an Act which had passed through all the normal procedures which an Act has to go through. That is to say, we have to accept it or reject it. We are not permitted to amend it.

Reading through the debate that took place in another place last night it seems to me that there was a strong wish to amend which could not be found room for. I share that wish this afternoon. Indeed reading through the debate held in another place last night it seems to me that there were points on which the Government—I may be wrong about this —would not have opposed amendment, if any amendment had been moved. We know from our ordinary legislation that it is not at all unusual for the Government to accept such amendments.

I am not sure whether I am in order in making these points but I hope I am. I am expressing doubt as to whether there is not a gap in our procedure which we ought to re-examine arising from this legislation. Although the legislation itself is eminently satisfactory and entirely acceptable to the House in general principle, the exceptions which can be made and the amount of things which can be kept secret, and which ought not to be kept secret, are surprisingly large. Therefore, although the legislation must be welcomed in generality on all sides of the House, there are particular aspects of it which I should have thought should have been improved. I shall give an example of that.

Last night in another place Mr. Chris Smith, MP, speaking from the Opposition Front Bench, said: Let us take another example, that of the contracts that British Nuclear Fuels Limited had for the reprocessing of nuclear wastes in the new thermal oxide reprocessing plant at Sellafield. The nature and content of those contracts have never been made public, and yet, arguably, they have a considerable impact on the future running of the plant and are crucial to an assessment of the case as to whether that plant will have an environmental impact. In that instance, it is unclear whether that counts as environmental information. We need to have the broadest possible definition, but will that be what the regulations mean in practice? There is a serious question mark about that, and it ought to be addressed".— [Official Report, Commons; 16/12/92; col. 509.] I can see that if I do not sit down fairly quickly I shall be requested to do so. To avoid that eventuality, if possible, I shall conclude by saying that I hope in replying to the debate the noble Viscount will take this matter into consideration and will perhaps be able to give us some assurance on this point. That point was not replied to at the end of the debate in another place. It still remains open and I should have thought perhaps this is an opportunity the noble Viscount might wish to seize to set at least one of these concerns at rest this afternoon. I am now completely out of order, but I believe the noble Viscount may wish to consider the whole general question on some other occasion.

Lord Dean of Beswick

My Lords, it is not normal in this House for any Member from any side of the House to quote from Hansard in another place. That could be a dangerous precedent unless one quotes from what a Minister has said. Nevertheless my noble friend has made a point and, if we follow the procedures that are normally accepted, today the Minister should at least give an undertaking to take note of what my noble friend has said and bring it to the attention of the appropriate Minister in another place.

Viscount Goschen

My Lords, it is important to recognise that these regulations give the public new legal rights of access to environmental information. I thank the noble Baroness, Lady Hilton, and the noble Lord, Lord Addington, for their general support, albeit with some reservations, of these regulations.

To answer the point made by the noble Baroness, Lady Hilton, there is a strong principle that information relating to the environment may be withheld if it concerns matters to which commercial or industrial confidentiality attach. We recognise and understand the anxiety that overzealous application of this principle could prevent environmental information being released which is in practice of no real commercial value. But there is no reason for relevant persons to accept bogus claims for commercial confidentiality. The relevant persons remain under a duty to provide environmental information if it can be separated from information being withheld, and a person refused information has a right to challenge the decision in the courts.

These regulations cannot and do not go beyond what is provided for in the directive. We accept that there is the additional question of the grounds provided for in the directive for refusing information. We strongly believe that these regulations should at least provide discretionary powers to protect environmental information relating to such matters as national defence or commercial confidentiality. Personal or volunteered information should be provided even greater protection, with relevant persons being placed under a duty not to disclose it without the agreement of the original supplier.

I turn now to another point raised by the noble Baroness, Lady Hilton. Disappointed applicants will resort to court action only in exceptional cases. Where an application for information has been refused, it is open to the applicant to complain to the relevant person. The written reasons for the refusal should prove helpful in this respect. If the parties are unable to resolve their difficulties amicably, the mere threat of court action will cause the relevant person to consider his position very carefully indeed. We would expect court action to be a last resort in the enforcement of these regulations, as in any other case.

The noble Baroness, Lady Hilton, and the noble Lord, Lord Addington, raised the question of judicial review. Judicial review is not merely procedural. Applicants can apply to the courts to compel the relevant body to release information where that is required by the regulations. Any challenge to a relevant body would involve some expense. The applicant may have adequate resources; alternatively, he might apply for legal aid. Judicial review is not the only remedy available to an applicant who considers that information has been withheld unlawfully. Regulation 3(6) places a statutory duty on relevant persons to release information. That duty can be enforced in the courts through a private action.

In relation to charging, a matter which was raised by the noble Baroness, Lady Hilton, it is quite normal to make provisions which include a test of reasonableness. Indeed, we believe that it would be foolhardy to attempt to prescribe charges which could be made by all the very different bodies to which the regulations relate. In the last event it is up to the courts to decide what is and what is not reasonable.

To answer another question raised by the noble Baroness, Lady Hilton, the third indent of Article 3.2 of the directive allows a member state to provide for a request for information to be refused where it affects matters which have been under inquiry. It is therefore consistent with the directive to provide for a request for information to be refused where it relates to any matter which is or has been the subject of a local or other public inquiry.

The regulations cannot restrict or modify existing arrangements providing public access to local or public inquiries or the information produced at such inquiries. The regulations merely give relevant persons the opportunity to withhold information of this kind. It does not follow that relevant persons will use that discretion in every case.

It was not considered appropriate to provide in the regulations for normal legal confidentiality to be breached. Relevant bodies may exercise that discretion where they consider that it would be appropriate to protect information and advice that they considered in the preparation of their case for a public or local inquiry. Similarly, where inquiries are held in private it would be wrong to remove the possibility, for example, of protecting information in the way necessary to ensure the security of premises.

The noble Lord, Lord Jenkins, is right to say that we cannot amend the regulations. We would not wish to amend carefully drafted regulations which implement the directive in a considered manner. I shall, of course, take note of what the noble Lord had to say on that subject. I commend the order to the House.

On Question, Motion agreed to.

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