Pearls and badgers – location, location, location

14 April 2011 by

Here we are, back with the  access to environmental information question…From rape, bees and lettuces , a coda, involving a diversion via a new road scheme planned for Aberdeen taking in pearls and badgers, crossing the River Dee Special Area of Conservation.

An opponent of the project brought a claim against the UK government before the Aarhus Compliance Committee; findings of the Committee were adopted on 25 February 2011. The complaints ranged far and wide but the point of interest arose under an exemption to disclosure in Article 4 of the Aarhus Convention, namely that disclosure would adversely affect “(h) the environment to which the information relates, such as the breeding sites of rare species.” This has found its way into reg.12(5)(g) of the Environmental Information Regulations 2004/3391, shorn, in a typically English way, of the helpful explanatory words underlined. Wouldn’t want the reader to get its meaning at a glance, would one?

The communicant (in Aarhus-argot) was an NGO known as Road Sense, acting by a Dr Hawkins. The UK refused to produce a report on freshwater pearl mussels in the River Dee on the basis that the report might identify the location of the mussel beds, and hence expose them to illegal pearl fishing. Dr Hawkins was from the start willing to sign an undertaking not to release any of that information to others, but Scottish National Heritage (SNH, in effect Natural England north of the Border), were unconvinced.

Dr Hawkins (as per G.M. Freeze, see our previous post) explained that this made his job of objection all the more difficult – was the proposed bridge going to affect the pearl mussels or not?

The Aarhus Committee was not persuaded bv the complaint. In truth, the problem does pose an environmentalist’s dilemma.  SNH accepted that it had no hesitation about Dr Hawkins’ suitability to receive the information.  However (contra Dr Hawkins’ undertaking) it was concerned about the fact that release of the information would put it in the public domain. The Committee agreed. The Convention was plainly intended to confer rights on members of the public generally, rather than specific individuals. Therefore the detriment from such general disclosure had to be taken account of in weighing it against the public interest in disclosure.
The poor badgers were dealt with rather more crisply. No request had been made made domestically for the report containing details of their setts, so no complaint could be made to the Committee.

The ruling on the pearl mussels must be right as a matter of principle. But it cuts both ways. It means (as I pointed out in the G.M. Freeze post) that the public interest is not simply that of the individual claimant, but of all those in whose interests disclosure might run. I do not pretend that application of this test is easy. Part of the problem, reading between the lines in G.M. Freeze, that the Tribunal found the particular appellant’s case unconvincing. But that is not really the point. The public interest must be judged broadly, and be then weighed properly against the exemption – remembering that it is not enough to bring oneself within an exemption, as they have to be weighed in a restrictive way (Aarhus Convention, Article 4(4), Environmental Information Directive 2003/4) against the public interest in disclosure. Hence, a generous view must be taken of that public interest – the Tribunal must not obsess too much about this appellant and his particular focus.

The rest of Road Sense’s complaints (which concerned lack of consultation) were dismissed – save one, concerning the making of a Protective Expenses Order (PCO, in Scot terminology) in the sum of £40,000 governing a statutory appeal against the making of the order enabling construction of the road. This element of the complaint was adjourned, potentially storing up more trouble for the UK government in respect of its obligations to enable environmental challenges to be brought without prohibitive expense under Article 9(4) of the Aarhus Convention. Probably the least of their worries, given other developments: see the blog posts on the subject below.

Angus McCullough QC, co-editor of the UK Human Rights Blog, appeared for the UK Government in this case.  He played no part in writing the post above.

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