Following our campaign on the issue, the government has largely dropped a proposed prohibition on disclosure in the Environment Bill.
Under the bill, a new body called the Office of Environmental Protection (OEP) would investigate serious failures by public bodies to comply with environmental law. But, worryingly, the draft bill had proposed to prohibit public access to most information about the OEP’s investigations, apparently overriding the right of access under the Environmental Information Regulations (EIR).
The Campaign was the first organisation to identify this problem. After highlighting it we co-ordinated a joint letter to the Environment Secretary signed by nearly 40 national organisations objecting to the prohibition. In reply a DEFRA minister claimed that they had not intended override the right of access. Following feedback from stakeholders and “recognising the concerns you have raised in your letter” DEFRA had “worked to address this in the final Bill”.
The revised bill was debated in the Commons in October 2019. The bill’s Explanatory Notes make clear that its it only effect on the EIR is that information about the new body’s investigations and information supplied to assist with its functions would be held by the OEP ‘in connection with confidential proceedings’. This would open the door to an EIR exception for disclosures which would ‘adversely affect…the confidentiality of the proceedings of…[a] public authority where such confidentiality is provided by law’ [Regulation 12(5)(d)]. Crucially, this would not mean that the information would necessarily be withheld. Its disclosure could be ordered on public interest grounds. This is a major retreat by the government.
We still have a number of concerns with the bill’s provisions:
- There is no reason why information which an authority supplies to OEP to assist it with its functions should be regarded as held ‘in connection with confidential proceedings’. The information may have nothing to do with possible enforcement action but may just describe the state of the environment or the progress towards targets, matters about which the OEP also has functions. There is no case for automatically applying an exception to such information. On the contrary, it should normally be disclosed.
- Although the Explanatory Notes say the bill does not override the EIR right of access, the bill itself does not say this. It should.
- The OEP and public authorities would still be prohibited from voluntarily disclosing certain information, even though it might be obtained under the EIR. We see no justification for this prohibition.
Although the bill obtained a second reading on 28 October 2019, the December 2019 election meant it made no further progress. If it is reintroduced, we will propose amendments to address these concerns.