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March/April 2021 www.pdpjournals.com FREEDOM OF INFORMATION VOLUME ISSUE 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 Prince of Wales’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 Tony Blair 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, Dominic Grieve, 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.
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