Climate change: No right to know effect of new EU rules

16 November 2011 by Karwan Eskerie

Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – Read ruling

The Environmental Information Regulations 2004 (“EIR”) did not require the Department of Energy and Climate Change (“DECC”) to disclose information concerning the government’s analysis of the potential cost to the UK of strengthened climate change commitments by the EU, the First-tier Tribunal (General Regulatory Chamber, Information Rights) has held.

In March 2007, the EU announced a target to reduce emissions by 20 percent on 1990 levels by 2020 and increase it to 30 percent under certain conditions. The issue of whether the EU would accept the increased target was debated during the 2009 Copenhagen Conference, but not agreed upon. It therefore remains a live issue.

The UK’s share of a 30 percent target for the EU will be determined by burden-sharing negotiations between Member States once an increased EU commitment has been agreed. However, there was a suggestion at the time of the Copenhagen Conference, stemming from a report by Lord Turner’s non-governmental Committee on Climate Change which was picked up by the media, that the enhanced EU commitment would translate into a 42 percent target for the UK. The UK Government, itself, has refrained from publishing any analyses or estimates of the likely burden on the UK of an increased EU target.

In response to a request by the Appellant for the disclosure of any analysis concerning the potential costs of enlarged climate change commitments at Copenhagen, DECC confirmed that it held information within the scope of the request but declined to disclose it on the basis that the information came within the exceptions in the EIR to the duty to disclose environmental information. In particular, DECC relied on Regulation 12(4)(e) (the information comprises of internal communications) and Regulation 12(5)(a) (disclosure would adversely affect international relations).

Regulation 12 of the EIR allows public authorities to withhold disclosure where one or more of the exceptions in the Regulation apply and in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

Following the dismissal of his complaint by the Information Commissioner, the Appellant appealed to the First-tier Tribunal.

Before the Tribunal, the Appellant contended, amongst other things, that the disclosure was required by the freedom of expression guarantee in Article 10 of the European Convention on Human Rights, the right to freedom of expression and information.

Reference was made to various European Court of Human Rights cases including the Second Chamber’s decision in Társaság a Szabadságjogokért v Hungary [2009] ECHR 618, where Hungary conceded that a pressure group’s attempt to obtain details of a parliamentarian’s complaint to the Constitutional Court engaged Article 10. The Tribunal was however not convinced that there was clear Strasbourg authority for the proposition that Article 10 conferred a right to obtain documents such as those in the instant case. It held that in any event it would have found any restrictions on the right to be justified.

The Tribunal went on to hold that

• (a) both of the aforementioned exceptions were engaged,

• (b) in respect of a paper prepared for the Prime Minister’s ad hoc committee, the public interest in disclosure was outweighed by the public interest in maintaining the internal communications exception, because of the impact on collective cabinet responsibility, and

• (c) as regards all the items within the scope of the request, the public interest in maintaining the international relations exception outweighed the public interest in disclosure.

The Tribunal accepted DECC’s evidence that whilst there was a strong public interest in having a debate about the costs of an increased target, the Turner report figures provided a robust basis for that debate and the premature publication of the Government’s internal views on the costs would not add very much. It would, moreover, significantly prejudice the UK’s position in ongoing negotiations and harm its relationship with certain countries whose interests would be affected by the UK’s position.

The Appellant sought to draw a distinction between disclosure which would annoy other states and thereby harm UK relations with them and disclosure which would merely weaken the UK’s position in international negotiations. The Appellant argued that whilst the former came within the scope of the international relations exception, the latter did not as it could not “adversely affect…international relations”. The Tribunal noted that on the facts, the disclosure would have annoyed certain states and therefore come within the narrower construction of the exception. However, it went on to positively reject that construction, and added that despite the need to construe exceptions restrictively:

We do not consider that the term ‘international relations’ can properly be confined to how favourably or otherwise other states view the UK; rather, it covers all aspects of relations between the UK and other states or international organisations. (§20)

The Tribunal, accordingly, dismissed the Appeal.

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