JOHN DUNKLEY
The reporter knows of no governmental action on the Sofia Guidelines.
Instead, the right, such as it is, is provided by a combination of EU-derived regulations (The Environmental Information Regulations 1992), general legislation on local government (The Local Government, Access to Information Act, 1985) and provisions governing the keeping of public registers pursuant to pollution control regimes established by the Environmental Protection Act, 1990, and other lesser legislation.
It is anticipated that a freedom of information act (FOI Act) will be passed by parliament later in 1998. That is expected to cover environmental information but will only establish an information commissioner and possibly tighten up some of the exemptions contained in the above legislation. In the meantime, 1992 regulations remain the principal legislation on the subject.
It is worth bearing in mind that the legislation is still relatively young and untested in the courts. As it it is tried out, the precise scope of its definitions and the stringency of its exemptions will be clarified. In the meantime, allowances should be made for the uncertainty of the raw text.
It is also worth remembering that there are non-statutory means of accessing information, such as through a parliamentary question tendered by a citizen's member of parliament to the appropriate minister.
Environmental Information
The Environmental Information Regulations 1992 is the only piece of legislation to define environmental information. It does so, as follows:
"...Information relates to the environment if, and only if, it relates to any of the following, that is to say:
- the state of any water or air, the state of any flora or fauna, the state of any soil or the state of any natural site or other land;
- any activities or measures (including activities giving rise to noise or any other nuisance) which adversely affect anything mentioned in sub-paragraph (a) above or are likely adversely to affect anything so measured;
- any activities or administrative or other measures (including any environmental management programs) which are designed to protect anything so mentioned."
The precise coverage of the definition is yet to be tested in court. It could be argued that the definition covers all aspects of the environment. However, there is inevitable concern that, for example, some human health and safety matters may be missed, although government guidelines support their inclusion.
Conditions for Obtaining the Information
The regulations require that, subject to the provisions of the Regulations, "a relevant person," which is defined as
All public authorities which have "responsibilities in relation to the environment" have a duty to disclose information.
This duty also extends to other bodies with public responsibilities for the environment, which are in turn controlled by a public authority with environmental responsibilities. Environmental lawyers think that this should encompass publicly regulated, privatized utilities, but this is a disputed, and as yet unsettled issue. The proposed FOI Act should settle the matter largely in the environmentalists' favor.
Under the regulations, every request should be answered as soon as possible, within two months at the latest. If the request is to be refused, a reasoned, written notice of this must be given within the same period.
For the information to be disclosed it must simply be "in an accessible form." Thus the form in which it is disclosed can take whatever form is practical.
Refusal to Provide Information
Public authorities may refuse to disclose requested information, and in some cases, must refuse.
In the first instance, an authority may refuse a request for practical reasons: the request is formulated in too general a manner or is simply unreasonable.
Secondly, an authority may treat as confidential and thus not disclose the following:
Finally, an authority must treat as confidential and thus not disclose the following:
The regulations go on to state that a refusal will not be authorized where non-confidential information can be separated from confidential information and could be disclosed on its own. Furthermore, government guidelines state that "the presumption is that environmental information should be released unless there are compelling and substantive reasons to withhold it."
However, as yet there is no obligation to explicitly disclose information for the sake of public interest, although it is expected that the public interest will be more robustly asserted in the proposed FOI Act.
Informal Guidelines for Agencies and the Public and Specific Institutions/ Officials to Provide Information
The government has also issued a Code of Practice on Access to Government Information. This creates no identifiable rights, but amounts to a statement of intention to provide citizens with information they request within 20 days. The exemptions to disclosure of information are as above. A disappointed citizen may complain first to an internal review procedure and ultimately to the Office of the Parliamentary Commissioner for Administration (the ombudsman).
Supervision
Under the proposed FOI Act there will be an Information Commissioner to oversee the disclosure of information. At present there is the ombudsman and the courts.
If an Authority Does Not Possess the Information
If an authority does not possess the information sought, then under the regulations it is not required to do anything other than reply promptly that it does not have it. There is no duty to obtain the information on the citizen's behalf, nor to direct the citizen to the correct source.
Costs of Obtaining Information
Under the 1992 Regulations, a charge may be levied to reflect the administrative inconvenience of disclosing the information. Members of the public may inspect public registers free of charge. However, a charge may be made, and usually is, for any photocopying.
The facilities for obtaining photocopies are generally improving from a position which was very poor. The charge imposed for such copying remains a point of contention.
Public authorities are duty bound in various circumstances to disseminate information, although not under the 1992 regulations.
Local planning authorities must give notice of draft development plans and proposed planning applications in accordance with the respective consultation procedures.
Emergency Alerts
The Control of Industrial Major Accident Hazards Regulations 1984, an implementation of the EU's "Seveso Directive," puts the primary responsibility on the manufacturer, who must inform the public in that area which would suffer the effects of a major accident. However, the local authority will also be instrumental in disseminating relevant information in order that the public is notified of proposed changes to legislation.
Methods of Dissemination
It is relatively easy for a group or organization to get on the mailing list of a government department in order to be notified of proposed changes to legislation.
The practical provision of environmental information varies widely between agencies both in type and quality. For example, the department of environment, transport and the regions runs a telephone hotline and Internet service on air quality. Some local authorities on the other hand, have barely developed their public information duties beyond allowing informal access to filing cabinets kept in non-public offices. More efficient local authorities have purpose-built offices in which members of the public may inspect and photocopy documents in comfort.
Obligation to Update
Apart from the requirement on the secretary of state to constantly monitor various aspects of air quality pursuant to EU derived air quality regulations, there is little obligation on government to collect and update environmental information. The EU Directives which gave rise to the air quality regulations require the UK Government to send information to the commission on implementation of the directives.
Public authorities do not in any significant way inform the public about the possibilities of submitting information to international bodies concerning non-compliance with international rules.
Electronic Means of Dissemination
There are no legal obligations on authorities to disseminate information electronically, although some progress has been made in this regard, notably by the department of the environment, transport and the regions' air quality information service.
Nongovernmental Centers
To the reporter's knowledge, there are no dedicated nongovernmental information centers. There is a wide network of public libraries, controlled by local authorities, which play a significant role in disseminating information, especially on planning matters.
Otherwise, NGOs play an ad hoc role in providing information on environmental matters.
In conducting its pollution regulation, the environment agency requires information from companies applying for consents. The companies are then by and large left to monitor their own compliance with the terms of their consent, subject to checking by the environment agency's inspectors.
In both these cases, and others, the effectiveness of the flow of information is dependent on the determination of the relevant authority to extract the relevant information and uphold the public's right to know.
On occasion, where a planning authority has refused an application for planning permission, this consultation can develop into a public inquiry conducted by a planning inspector and following a quasi-judicial format. Effectively, it is the inspector who usually makes the decision, although technically it is the secretary of state. In doing so the inspector will overrule the elected members of the planning authority.
In recent years the right to be consulted has come to be effectively recognized by the courts, arising from "a legitimate expectation" that one will be consulted. Such an expectation can arise from statements made by officers.
There is no right to a referendum on environmental or other issues.
Right to Initiative
There is no right to initiate legislation or policy on environmental or other issues.
Decisionmakers are however required by administrative case law to take all relevant matters into consideration when making a decision. If they fail in this, or their decisionmaking is flawed for a procedural reason or is simply "irrational," an affected citizen may challenge the decision in the high court and, in a successful case, can have the decision quashed.
Thus, there is a mechanism, albeit flawed, whereby the quality and openness of decisionmaking may be challenged.
Where they come under criticism is the degree of informal decisionmaking which campaigners fear takes place outside the formal public arena. For example, citizens have been excluded from negotiations over the management of local areas of environmental importance (Carmel Woods).
While not being permitted to participate in parliamentary sessions, individuals and NGOs may be invited to give evidence to parliamentary committees, which are conducted on an inquisitorial basis.
Openness of Parliamentary Committees
Members of the public are free, subject to available space, to attend sittings of both houses of parliament, and parliamentary committees. The sittings are regularly broadcast on radio and television. A journal, Hansard, records the business and debates in parliament. However, committees do sit privately. They may conduct confidential business in private.
Citizens are similarly free to attend sessions of their local authorities and their committees. However, the public can be excluded from either on occasion.
It is impossible to assess the true extent of the informal contact between NGOs and decisionmakers.
The reporter is not aware of any training of government officials in public participation, any funding of public participation projects or training, or any government support for the promotion of public participation in educational institutions or the media.
It is very difficult to assess how many environmental cases are brought before the courts in any year. No statistics are available, and the diverse nature of the cases, ranging from local authority-instigated statutory nuisance prosecutions in the local magistrates courts, through neighbor disputes in county courts, to judicial reviews of government decisions in the high court, means that such an exercise would be unfeasible. This is further compounded by the fact that multi-party environmental cases are often made up of many individual cases.
However, the position appears to be improving on a legal standing. It has been held that NGOs with particular expertise in a relevant area may have standing in legal challenges to government decisions. More recently, it has been held that individuals may have a similar standing, as long as they are not deemed to be merely interfering "busybodies." However, this apparent relaxation requires confirmation by further case law before being treated as a fixed feature of the legal landscape.
In civil proceedings, where the object of the proceedings is compensation and/or an injunction, standing is confined to those who are parties to the dispute. It is possible for third parties to appear in court as amicus curiae, "friends of the court," to assist the court in bringing relevant facts to the its attention. However, this is rarely exercised.
In criminal proceedings, where the right or power to commence a prosecution is not limited by statute, any citizen may bring a prosecution. This is subject to the power of the director of public prosecutions, who can take the matter over from the citizen, and even abandon the prosecution.
However, neither individuals nor NGOs have any standing in decisionmaking processes, other than that allowed them by consultation procedures. Applicants for planning permission may appeal refusals within the administrative process.
The right to legal standing is summarized in Tables 1-2.
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested | - | - |
| affected | - | occasionally |
NGOs |
||
| everyone | - | - |
| interested/affected | - | - |
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | x | - | x | * | * |
| interested | x | - | x | * | * |
| affected | x | x | x | * | * |
NGOs |
|||||
| everyone | x | - | x | * | * |
| interested | x | - | x | * | * |
| affected | x | x | x | * | * |
*There are no arbitration or constitutional courts. |
|||||
There has not been any research into the response time to requests for environmental information. However, as is outlined above, a response should be forthcoming as soon as possible and at the latest within two months.
The reporter is not aware of any data on the response time for other environmental administrative decisions
Such enforcement is generally effective, providing the enforcer has not managed to put their property beyond the reach of the court, either through complex financial arrangements or by sending it outside the court's jurisdiction.
There are attempts being made to introduce a practice whereby in public interest cases, each side bears its own costs regardless of who wins. This has yet to be properly established although some progress has been made.
If a citizen is on a low income, and his/her case is deemed suitable, he/she may be granted legal aid. The legal aid fund then meets most if not all of the cost of conducting the case, subject to recovering its costs out of any subsequent award by the court. A major advantage of receiving legal aid, is that the citizen is effectively protected against paying the costs of the other side if unsuccessful.
However, legal aid is often not available for environmental cases, as legal aid rules effectively block most cases of a collective or communal nature. But the situation is subject to change, since the legal aid system will shortly be reformed.
EarthRights
EarthRights has one full time lawyer. He is supported by a team of volunteers. EarthRights specializes in all aspects of environmental law, and indeed all aspects of the law pertaining to the environment. Thus assistance is provided on pollution control, planning law, the right to protest, the setting up of environmental organizations. EarthRights services are provided completely free of charge to the public. Its work is supported by donations and, where appropriate, legal aid.
The Environmental Law Foundation
The Environmental Law Foundation (ELF) is a network of private lawyers, who provide a discounted service on various aspects of environmental law. The ELF office is supported by donations, grants and income from publications.