Secrecy under the Environment (Principles & Governance) Bill

Photo by Sarah Sigler on Unsplash

The Campaign is concerned the government is using the Draft Environment (Principles and Governance) Bill to undermine the right of access to environmental information.

The bill establishes the Office for Environmental Protection (OEP), part of whose functions is to enforce compliance by public authorities with environmental legislation. Unfortunately, that function would be subject to a statutory prohibition on disclosure which would, we believe, override the right of access under the Environmental Information Regulations (EIR).

Under the bill:

  • the OEP would be prohibited from disclosing any information it obtained from an authority which it is investigating without the authority’s consent
  • the public authority would be prohibited from disclosing information about formal action being taken against it without the OEP’s consent
  • the OEP would be required to copy its correspondence with an authority to the minister but be prohibited from disclosing the minister’s reply without the minister’s consent.

What passes between the OEP and an authority under investigation is thus suppressible by whichever side is providing the information. Ministers could intervene in enforcement matters with the benefit of total secrecy. The existing right of access could not apply to any of this information.

These bars on disclosure would all be absolute and indefinite and apply regardless of the public interest in disclosure. This is a massive contrast with the existing position under the Environmental Information Regulations (EIR) which exempts information about investigations only if disclosure is likely to be harmful and subject to a duty to disclose in the public interest.

At present, the EIR right of access takes precedence over any statutory restriction on disclosure, which would make the prohibition pointless. The government must therefore intend to reverse this, so that statutory restrictions take precedence over the EIR right of access. It hasn’t acknowledged this, but that is the only explanation. This would probably allow all statutory restrictions to override the EIR right of access in future.

The normal EIR regime would be replaced by a blanket bar on disclosure of OEP enforcement action, far more restrictive even than that under the European Commission infraction process which the OEP enforcement function partly replaces.

We set this out in evidence to the Environment, Food and Rural Affairs Committee. Read the full submission here.

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