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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.
R (on the application of LITVINENKO) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2013) QBD (Admin) 4 October 2013, judgment behind Lawtel paywall UPDATED x 2
An extraordinary story which would have raised our eyebrows at its implausibility had it come from our spy novelists. In late 2006, Alexander Litvinenko was murdered by polonium-210 given to him in London. He was an ex-Russian Federation FSB agent, but by then was a UK citizen. He had accused Putin of the murder of the journalist Anna Politovskaya. He may or may not have been working for MI6 at the time of his death. The prime suspects for the killing are in Russia, not willing to help the UK with its inquiries. But rightly, in one form or another, we want to know what really happened.
Not entirely surprisingly, Marina Litvinenko said that her husband had been murdered on orders from the Russian Federation. An inquest started, though the UK Government said that much of what the coroner wanted to inquire was off limits because covered by public interest immunity. In the light of this stance, the coroner, Sir Robert Owen, a senior high court judge, had said that any investigation into Litvinenko’s death could only be adequately carried out by a public inquiry. The secretary of state refused to order such an inquiry, saying that it could take place after the inquest if necessary. The inquest continues, but it can therefore only look at part of the story.
R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment
“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)
The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.
The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.
The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.
Stephen McIntyre v Information Commissioner (Environmental Information Regulations 2004) [2013] UKFTT 156 (17 May 2013) – read judgment and [2013] UKFTT 51 (7 May 2013) read judgment
These are the latest in a series of freedom of information requests for disclosure of material from the UEA’s Climatic Research Unit (CRU). These requests arose following the ‘climategate’ affair where hacked university emails suggested that individuals within CRU might have attempted to abuse the process of peer review to prevent publication of opposing research papers and evidence. Hence the sensitivity of the data to both requester and CRU, and the passions engendered on these appeals.
Both cases turned on whether disclosure could be denied on the basis of the public interest exception to the default rule that information should be disclosed, in other words the chilling effect on sharing ideas and unpublished research, and the potential distortion of public debate by the disclosure of incomplete material. Continue reading →
Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of international news coverage. And it’s not over yet.
It all stems from a request for information made under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 (“the Regulations”) by a Guardian journalist, Mr Rob Evans. In April 2005 he wrote to seven Government Departments, and asked for a list of correspondence between Prince Charles and the ministers for those Departments between 1 September 2004 and 1 April 2005, as well as copies of each piece of correspondence. Many of the Departments initially relied on exemptions contained in the Act in order to refuse to confirm or deny whether or not they held such information. Ultimately however, all the Departments admitted that such correspondence did exist, but they refused to disclose it.
Harrison Jalla and others v. (1) Shell International Trading and Shipping Company (2) Shell Nigeria Exploration and Production Company Limited [2021[ EWCA Civ 63 – read judgment
A traditional phrase in the common law, such as “continuing nuisance”, may mean a number of things in different contexts, as we will see clearly from this oil spill case. The claimants argued, unsuccessfully, that the presence of oil from the spill which had come onto their land was a continuing nuisance for as long as it remained there – which, they said, should get them around the limitation problems in their claims.
Kennedy v. Charity Commission et al, Court of Appeal, 20 March 2012, read judgment
Tangled web, this one, but an important one. Many will remember George Galloway’s Mariam Appeal launched in response to sanctions imposed on Iraq in 1998, and the famous picture of GG with Saddam Hussein. Well, the Appeal was then inquired into by the Charity Commission, and this case concerns an attempt by a journalist, unsuccessful so far, to get hold of the documents which the Inquiry saw. But the Commission took the 5th amendment – or rather, in UK terms, a provision in the Freedom of Information Act (s.32(2))which exempted from disclosure any document placed in the custody of or created by an inquiry. Cue Article 10 ECHR, and in particular the bits which include the freedom to receive information.
R (on the application of Evans) v The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin) – Read judgment
The High Court has found that the Ministry of Justice, when making a decision to cease the state’s funding of judicial review challenges on purely public interest grounds (apart from one exception), took into account the fact that to do so would reduce the number of decisions being made which were not in the government’s interests. Unsurprisingly, the Court to concluded that the decision was unlawful and should be quashed.
The Applicant applied for judicial review of a decision by the Respondent to amend the Legal Services Commission (LSC) Funding Code, which funds litigation for those who meet certain criteria. The effect of the amendments, which were introduced in April 2010, was to prevent public funding by the LSC for judicial review proceedings (challenging decisions of public bodies) which were pure public interest challenges. That is, where the Applicant stood to gain nothing from the litigation and was bringing it solely to promote a particular public interest. The one exception was in environmental cases.
We have posted previously on controversial plans to build a US-style mega pig-farm in South Derbyshire. It will be remembered from that post that Midland Pig Producers (MPP) applied for permission to build the farm – which could house up to 25,000 animals – on a greenfield site west of the historic village of Foston.
The Soil Association formally objected to the plans because of the ‘increased disease risk and poor welfare conditions” of intensive units. Despite being made within the privileged context of planning proceedings, the Soil Assocation received a threatening letter from solicitors Carter-Ruck – acting for MPP – saying its objection was defamatory.
The Guardian now reports that the campaigning local groups, Foston Community Forum and Pig Business, the film makers who exposed the abuses and environmental costs of intensive pig farming, have joined forces with the Soil Association and Friends of the Earth to bolster their original argument with claims under the Human Rights Act. Continue reading →
Holland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013 – read judgment
In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.
UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information.
This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them. UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.
Is environmental regulation unnecessary and is it crippling our economy? This was the debate which raged last Thursday between a senior Conservative backbencher and one of our regular 1 Crown Office Row contributors to the blog – thanks to the UK Environmental Law Association who organised it and city law firm Simmons & Simmons who hosted lunch. Stephen Tromans QC of 39 Essex Street ably chaired the debate.
The motion of the debate was a broad one which John Redwood narrowed down into an onslaught on climate change subsidies, which he said were pointless and damaging. To find out more about his case, and David’s response, listen to the audio file here.
R (Nigel Mott) v Environment Agency [2015] EWHC 314 (Admin)Read Judgment
An interesting Court of Appeal decision concerning the science of migratory salmon, and the circumstances in which compensation will be granted when an interference with Article 1 Protocol 1 is found.
For over forty years, Mr Nigel Mott has fished for salmon at Lydney on the River Severn with putcher ranks: rigs of conical baskets which trap adult salmon as they swim upstream in order to spawn.
Putchers had long enjoyed a privileged status as against other means of fishing. Owing to their designation as a “historic installation”, they were spared the controls and conditions which applied to rods and nets, and which have increasingly regulated fishing activity since the first Salmon Fisheries Acts in 1861.
Freedom to fish without restriction allowed Mr Mott to make his living from this ancient method: at £100 per salmon, his annual catch of 600 fish brought him a gross turnover of £60,000.
In 2011, new statutory powers enabled the Environment Agency (“the Agency”) to impose catch conditions on fishing licences granted in respect of historic installations “where it considers that it is necessary to do so for the protection of any fishery”.
Case C-41/11,Inter-Environnement Wallonie ASBL,Terre wallonne ASBL v Région wallonne, CJEU, 28 February 2012, read judgment
Some years ago, Belgium got itself into trouble for not properly implementing the Nitrates Directive, a measure designed to limit the amount of water pollution arising from muck-spreading and other good old-fashioned agricultural activities. And then it got itself into trouble under another Directive (the Strategic Environmental Assessment Directive) for the way that it then went about amending the law to address nitrates. So the nitrates amending law got annulled. But what to do then? Because a defective nitrates law was better than none at all. This was the conundrum which faced the CJEU in this recent case.
The latest round of this saga started when NGOs challenged the way in which the Walloon government sought to amend their water law in line with the Nitrates Directive. They went to the Conseil d’Etat to annul the amendment, because it did not comply with the SEA Directive. In 2009, the Conseil d’Etat referred the case to the CJEU, asking whether the nitrates amendment was a strategic plan or programme with the meaning of the SEA Directive. In 2010, (C-105/09) the CJEU said it was, in principle, it being for the domestic court ultimately to rule on the issue. In due course, the Conseil d’Etat confirmed this view by ruling that the nitrates amendment was in fact such a measure.
Buglife, R (on the application of) v Natural England [2011] EWHC 746 (Admin) – Read judgment
All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time.
And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.
Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”. Continue reading →
Office of Communications v Information Commissioner [2010] UKSC 3
SC (Lord Hope (Deputy President), Lord Saville, Lady Hale, Lord Mance, Lord Collins) January 27 2010
Article 4(2) of the European Directive 2003/4 imposes a duty to disclose environmental information. The Environmental Regulations were passed in 2004 to give effect to the Directive, the duty being contained in Regulation 12.. There are a number of different exceptions to this duty, one of which is the public safety exception in reg 12(5)(a), and another the intellectual property rights exception in reg. 12(5)(c).
The information commissioner had ordered that the respondent (OFCOM) disclose information as to the precise location of mobile telephone base stations in the United Kingdom. The Information Tribunal had dismissed OFCOM’s appeal against the order, finding that although disclosure fell within the scope of the two exceptions under 12(5)(a) and (c), both were outweighed by the public interest in disclosure.
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Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – Read ruling
Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of 
R (on the application of Evans) v The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin) – 
Office of Communications v Information Commissioner [2010] UKSC 3 
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