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hen the clocks chimed requires its signatories to, amongst at midnight on 31st other things, “ensure that… public From the December 2020 in authorities, in response to a request W Brussels — 11pm for environmental information, make in the UK — the Brexit transition such information available to the stroke of period ended, and a new era began. public”. The Preamble recognises There’s been no shortage of talk that, “improved access to infor- about Brexit during the last four and mation… enhance[s] the quality midnight: a half years, but it was only at that and the implementation of decisions, moment that the legal changes really contribute[s] to public awareness started to take effect. Quite literally, of environmental issues, give[s] from one second to the next, major the public the opportunity to express EU judgments elements of the UK’s legal system its concerns and enable[s] public were transformed. authorities to take due account of such concerns”. on access to For those interested in rights of access to information, it is the The EU and the UK are each a regime for access to environmental signatory to the Aarhus Convention. environmental information that is affected by this As a matter of international law, the change. The origins of that regime UK’s obligations under the Aarhus are multi-layered, deriving much of Convention are unaffected by the information — their shape — and teeth — from EU UK’s withdrawal from the EU. law. The second layer, also sitting at the For now, the rules themselves re- EU level, is Council Directive 2003/4/ still relevant in main the same, though the way they EC on public access to environmen- take effect in UK law has changed. tal information (‘the Environmental And disputes as to their meaning are Information Directive’). This requires a post-Brexit no longer subject to ultimate determi- Member States to “ensure that public nation by the EU Courts in Luxem- authorities are required… to make bourg. available environmental information UK? held by or for them to any applicant The first judgment on access to envi- at his request and without his having ronmental information delivered by to state an interest”. As stated in the Court of Justice of the European its Recitals, the Environmental Union after the end of the transition Information Directive is intended period — concerning a request for to ensure the consistency of EU information about a controversial law with the Aarhus Convention. The multi-billion pound railway project in two instruments are not the same, Germany — provides an opportunity but the wording and purpose of the to think about what lies on the road Aarhus Convention is to be taken Isabella Buono, Barrister ahead. into account when interpreting the with Cornerstone Barristers, Environmental Information Directive. discusses the changes to the Origins of the right of The third and final layer, and environmental information access to environmental sitting at the domestic level, is the regime that kicked in upon secondary legislation adopted to im- information plement the Environmental Infor- the expiry of the Brexit mation Directive: the Environmental In the UK, the right of access to transition period Information Regulations 2004 (‘the environmental information derives EIRs’). The EIRs, in large part, sup- from three different, but overlapping, plant the Freedom of Information Act layers of law. 2000 (‘FOIA’) in the specific field of environmental information (as infor- At the international level, the first mation to which a person has a right layer is the Convention on Access of access under the EIRs is exempt to Information, Public Participation from disclosure under FOIA). This in Decision-Making and Access to schism is not insignificant: the EIRs Justice on Environmental Matters contain an express presumption in (‘the Aarhus Convention’), adopted favour of disclosure, which finds no by the United Nations Economic equivalent in FOIA; ‘public authority’ Commission for Europe on 25th is defined more broadly under the June 1998 in the Danish city of EIRs than FOIA, so as to include Aarhus. The Aarhus Convention private bodies and persons ‘under www.pdpjournals.com FREEDOM OF INFORMATION VOLUME ISSUE

the control’ of a public authority with- the ‘conduit pipe’ through which EU the EIRs, stating that he had, on in their reach; and there are fewer law previously flowed into UK law. ‘reasonable grounds’, formed the exceptions to the duty to disclose When the UK was a Member State opinion that the government depart- under the EIRs, each of which, apart of the EU (1st January 1973 — 31st ments had been entitled to refuse from that for personal data, is subject January 2020), and during the transi- disclosure. “Disclosure of the corre- to a public interest test. tion period (1st February 2020 – 31st spondence”, Grieve suggested, December 2020), certain provisions “could damage the ’s In the UK, the latter two of these of EU law could be relied on directly ability to perform his duties when he three layers of law — before the UK courts, and becomes king.” The purported effect the Environmental Infor- would take priority in the of the certificate was to override the mation Directive and event of conflict with UK decision of the Tribunal. the EIRs — are tied to “Decisions law (by virtue of the EU the UK’s membership of made by the doctrines of ‘supremacy’ The Supreme Court decided that the EU. and ‘direct effect’). the certificate issued by the Attorney CJEU before The EU law instruments General was invalid, and therefore Now that the UK is no 11pm on 31st that could be invoked, that the Tribunal’s decision in favour longer an EU Member and take priority, in of disclosure was to stand. In respect State, the status of December this way included the of the environmental information the Environmental 2020 continue Environmental Infor- (later revealed to include letters to Information Directive to bind most mation Directive. the then Prime Minister on in the UK has changed matters ranging from climate change fundamentally. The UK courts and A particularly high-profile to the spread of bovine TB by badg- substance of the law, tribunals. So, example of the former ers), the Supreme Court considered however, at least for for example, free-flow of EU law into the Attorney General’s certificate to the moment, remains UK law occurred in the infringe Mr Evans’ rights under the much the same. the landmark case concerning Prince Environmental Information Directive. judgment of Charles’ ‘black spider The Directive guaranteed him a right memos’ (so-dubbed on to challenge the government’s re- The domestic the CJEU on account of HRH’s sprawl- fusal of his request before a judicial apparatus of the meaning ing comments and spirally body, whose decision should be of ‘public handwriting): R. (Evans) v ‘final’ and ‘binding’. The Attorney Brexit: the EU Attorney General [2015] General’s attempted circumvention (Withdrawal) authority’ A.C. 1787. of the Tribunal’s decision was incom- Act 2018 under the patible with that right. Mr Evans was Mr Evans, a journalist, able to make this argument — rely- Environmen- The apparatus for ef- made requests under ing on his rights under the Environ- fecting much of the tal Infor- FOIA and the EIRs for mental Information Directive directly change to the post- mation disclosure of communica- before the UK courts — because of tions passing between the EU doctrine of ‘direct effect’. Brexit domestic legal Directive landscape is contained various government in the EU (Withdrawal) (C-279/12 departments and Prince By operation of the Withdrawal Act, Charles. The government at 11pm on 31st December 2020, Act 2018 (‘Withdrawal Fish Legal v Act’). Enacting the departments refused his that free flow of EU law into UK law Withdrawal Act was a Information requests on grounds came to an end. If the Withdrawal major undertaking; the Commission- that the information was Act had stopped there, there would exempt under sections have been legal chaos on New product of a mammoth er) will 272 hours of parliamen- 37 (‘communications with Year’s Day, with a significant propor- tary debate (112 in the remain in the heir to the throne’), 40 tion of the law in force in the UK (‘personal information’) changing overnight. To avoid that Commons, 160 in the place — at Lords). Described in the and 41 (‘confidentiality’) ‘cliff edge’, the Withdrawal Act took White Paper Legislating least so far of FOIA and the equiva- a ‘snapshot’ of EU law as it stood at for the United King- as the High lent exceptions in the 11pm on 31st December 2020 and EIRs. turned a great deal of it into UK law. dom’s withdrawal from Court and the the European Union What’s captured and converted by (2017) as ‘the Great information Mr Evans successfully the Withdrawal Act is called ‘retained challenged the refusal EU law’. It includes the Environmen- Repeal Bill’, the With- tribunals are drawal Act was intend- before the Upper Tribu- tal Information Directive and the ed to ‘put the UK back concerned.” nal, which decided that EIRs. It can be changed by Parlia- in control of its laws’ most of the letters should ment and, in some circumstances, and to ‘maximise be released. But shortly #by Ministers. certainty’. thereafter, the then Attor- ney General, , issued To fulfil the former of those two ob- a ministerial certificate under section jectives, the Withdrawal Act cuts off 53 of FOIA and Regulation 18(6) of (Continued on page 6) www.pdpjournals.com FREEDOM OF INFORMATION VOLUME ISSUE

(Continued from page 5) answers given by judges in other The CJEU disagreed. It decided that, countries, particularly those with a as a matter of EU law, for information

On that basis, unless and until the similar legal system. For example, to constitute a ‘communication’, it retained Environmental Information in Glasgow City Council v Scottish must have been addressed by an Directive is changed by Parliament Information Commissioner [2009] author to someone, whether an or by Ministers, the approach taken CSIH 73, Lord Reed — then a mem- abstract entity (for example, ‘to to environmental information in the ber of the Inner House of the Court the executive board’) or a specific ‘black spider memos’ is still available of Session, now the President of the person (such as a member of staff and correct. UK Supreme Court — referred to the or an official). To be ‘internal’, the approach taken by courts in Australia information must not have ‘le[ft] the and New Zealand to the question internal sphere of a public authority’, What about judgments of of what counts as ‘information’, to in particular by not having been the Court of Justice of the assist with his interpretation of the disclosed to a third party or made Scottish FOIA (the Freedom of Infor- available to the public. Provided European Union (‘CJEU’)? mation (Scotland) Act 2002). Post- those criteria are met, the exception Brexit, judgments of the CJEU can will apply even if the decision-making In answering that question, the be referred to in much the same way. process to which the information Withdrawal Act distinguishes be- relates has come to an end. In tween cases decided by the CJEU that sense, the exception is not before 11pm on 31st December The first post-Brexit time-limited (although the passage 2020, on the one hand, and cases judgment of the CJEU on of time might affect the application decided by the CJEU after 11pm on of the public interest test). 31st December 2020, on the other. access to environmental information So far as UK courts and tribunals Decisions made by the CJEU before are concerned, the judgment in DR 11pm on 31st December 2020 con- The first judgment of the CJEU on is not a binding statement of the law tinue to bind most UK courts and access to environmental information which must be followed. At most, it tribunals. So, for example, the land- after the end of the Brexit transition is a potentially useful or persuasive mark judgment of the CJEU on the period was delivered on 20th Janu- piece of judicial reasoning that might meaning of ‘public authority’ under ary 2021, in the case of C-619/19 assist in resolving a similar dispute. the Environmental Information Di- Land Baden-Württemberg v DR. But if a UK judge — whether sitting rective (C-279/12 Fish Legal v Infor- in the First-tier Tribunal or the Su- mation Commissioner) will remain in A person (DR) had requested preme Court — disagrees with it, place — at least so far as the High documents from a state government they are free to take a different ap- Court and the information tribunals in Germany (the State Ministry of proach. That, in itself, is a significant are concerned. Under the Withdraw- the Land of Baden-Württemberg) change. al Act, the Supreme Court can depart relating to tree felling in Stuttgart from pre-Brexit judgments of the Castle Park, which took place in Admittedly, the CJEU’s judgment in CJEU in the same way that it can 2010 in the course of a major DR is unlikely to send shockwaves depart from their own case law. railway and urban development through the system governing ac- The recently adopt- project (known as ‘Stuttgart 21’). cess to information in the UK. The ed regulations that give much the The state government refused to judgment largely accords with the same freedom to the Court of Ap- disclose the requested documents Information Commissioner’s guid- peal. Other courts or tribunals could on the basis that they were ‘internal ance on the ‘internal communica- in the future be added to that list. communications’. An exception for tions’ exception in the EIRs, and ‘internal communications’ is provided with the approach taken by tribunals Decisions made by the CJEU after in Article 4(1)(e) of the Environmen- in the UK. There are some differ- 11pm on 31st December 2020 are tal Information Directive — and, in ences with, for example, the Infor- no longer binding on any UK court or the UK, in Regulation 12(4)(e) of the mation Tribunal deciding in Secretary tribunal. The Withdrawal Act permits, EIRs. of State for Transport v Information but does not require, UK courts and Commissioner (EA/2008/0052) tribunals to have regard to new EU The state administrative court in that what counts as ‘internal commu- case law, so far as relevant to any Germany decided that the state nications’ for the purposes of the matter before them. In that sense, government could not rely on the EIRs ‘will depend on the context and they are now free to chart their own ‘international communications’ ex- facts in each situation’ and not any course. ception, as that exception no longer ‘standard test’. However, these are applies once the decision-making perhaps differences more of form Permitting UK courts and tribunals process to which the ‘internal com- than of substance. to draw assistance from foreign munications’ relate has come to an judgments in this way is not a novel end. So, we are left with something of a phenomenon. In fact, when resolving waiting game — waiting to see if a new and difficult questions, UK judg- judgment of the CJEU signals a shift es often draw inspiration from the in established understanding of infor- www.pdpjournals.com FREEDOM OF INFORMATION VOLUME ISSUE

mation rights, and, if (or when) it does, waiting to see how the UK courts and tribunals respond. And, having avert- ed a ‘cliff edge’ on New Year’s Day, the Withdrawal Act leaves us with a further cliff-hanger: whether the gov- ernment will exercise its new freedom to rip up all or part of the EIRs com- pletely (subject only to the continued obligation to comply with the Aarhus Convention as a matter of internation- al law).

It will be interesting to see what, if anything, ‘taking back control’ of the law means in this field in the months and years to come.

Isabella Buono Cornerstone Barristers [email protected]

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