Select Committee on European Scrutiny First Report


PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION


(a)
(21458)
10003/00
COM(00) 400


Commission Report on the experience gained in the application of Council Directive 90/313/EEC on the freedom of access to information on the environment.

(b)
(21459)
10004/00
COM(00) 402


Draft Directive on public access to environmental information.


Legal base: (a) —
(b) Article 175(1) EC; co-decision; qualified majority voting
Department: Environment, Food and Rural Affairs
Basis of consideration: SEM of 26 April 2001
Previous Committee Report: HC 23-xxvii (1999-2000), paragraph 9 (25 October 2000)
Discussed in Council: 7-8 June 2001
Committee's assessment: Politically important
Committee's decision: Cleared

Background

35.1  The Community provisions currently governing freedom of access to information on the environment are set out in Council Directive 90/313/EEC.[56] This requires Member States to ensure that public authorities make available information requested relating to the environment (for which a reasonable charge may be made). Member States may, however, provide for a request to be refused where it would affect such areas as the confidentiality of public proceedings, public security, commercial confidentiality, personal data, and matters which are sub judice. A request may also be refused where it would involve the supply of unfinished documents, or is formulated unreasonably or in too general a manner. The reasons for a refusal must, however, be given, and may be subject to a judicial or administrative review. Finally, Member States themselves have an obligation to provide general information to the public on the state of the environment by such means as periodic reports.

35.2  As required under the Directive, the Commission reported in June 2000 (document (a)) on the way in which it had operated to date. This Report was accompanied by document (b), which proposed a number of changes to the Directive in the light of that experience, and of the subsequent signing by the Community and the Member States in 1998 of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention).

35.3  In its report, the Commission identified the main problems as having been too restrictive an interpretation of what constitutes information relating to the environment; uncertainty over the definitions of public authority, and of bodies with public responsibilities for the environment; a refusal to provide information, even though it is not covered by one of the permitted exceptions; slowness in responding to requests, or failure to do so at all; and the levying of unreasonable charges.

35.4  The Commission also discussed the terms of the Aarhus Convention, which it regards as a "clear advance"on the provisions of the Directive. It saw the main improvements as being:

  • an extended definition of "environmental information" and of "public authorities";

  • more detailed provisions regarding the form in which information is to be made available;

  • a shorter deadline for responding to requests, and a requirement for any response to be substantive rather than simply an acknowledgement;

  • a more restrictive interpretation of the permitted exceptions, with the public interest being weighed as between disclosure and non-disclosure;

  • a strengthening of the obligation on national authorities to give reasons for refusing a request;  

  • additional duties on national authorities to disseminate information beyond the obligation to respond to requests; and

  • improved procedures for reviewing the actions or omissions of public authorities.

35.5  These considerations were reflected in the Commission's proposal for amending Directive 90/313/EEC, which it described as a "timely opportunity" to align Community law with the relevant provisions of the Convention, and as a means of reflecting the use of the latest technology in disseminating environmental information.

35.6  In his Explanatory Memorandum of 6 October 2000, the Minister for the Environment (Mr Michael Meacher) said that the UK strongly supported the objectives of the Aarhus Convention, and was committed to ratifying it as soon as possible. However, he added that there were a number of implications arising from the specific way in which the Commission was seeking to give effect to those objectives. In general terms, the proposal went beyond the Convention; it removed the option of complying with the Convention administratively, thereby limiting Member States' flexibility; and it limited Member States' discretion by omitting some important provisos. More specifically, he pointed out that:

  • the definition of "public authorities" suggested by the Commission extended the scope for the first time to private sector firms, notably those supplying services, such as gas, water and electricity, still provided by the public sector in many Member States (or indeed to others firms which might affect the environment, such as airlines, freight hauliers, and the construction industry);

  • an obligation on public authorities to make available environmental information by electronic means would extend to archive material; and

  • whereas the Aarhus Convention expressly allows charging in advance (in line with common UK practice), the Directive would prevent this.

35.7  The Minister also pointed out that, although the Aarhus Convention was not expected to give rise to significant additional costs, the Commission's proposal could involve financial impacts which it had not properly addressed. He therefore submitted with his Explanatory Memorandum a partial Regulatory Impact Assessment, which suggested that the new Directive was very unlikely to apply to small businesses, but that larger undertakings such as the privatised utilities could be affected. At this stage, however, the main additional costs identified were likely to fall on public authorities as a result of the new provisions on charging, and the requirement to disseminate information electronically. For example, the first of these could cost the Environment Agency £1 million a year, whilst the Agency's costs from the second could be as high as £49 million by way of preparation, and £600,000 a year thereafter. Comparable costs for the Planning Inspectorate for the two aspects respectively are put at £40,000 a year and £100,000.

35.8  In our Report of 25 October 2000, we commented that improved access to environmental information had already been established by the present Directive and the Aarhus Convention, and that, to the extent that this proposal sought to address some of the shortcomings in the former and to take on board the main elements in the latter, it was to be welcomed. However, we also noted that there were clearly some outstanding points requiring clarification, and that we would await with interest any further information which the Minister could provide, together with the full Regulatory Impact Assessment he had promised following the Government's consultation exercise, before considering these two documents further.

Supplementary Explanatory Memorandum of 26 April 2001

35.9  In his Supplementary Explanatory Memorandum of 26 April 2001, the Minister says that, as a result of discussions in Brussels, two of the UK's main concerns have been addressed: the definition of "public authority" has been brought into line with that in the Aarhus Convention, and the amended text both enables charges to be made in advance of the supply of information and modifies the potentially expensive obligation to extend the electronic dissemination of information to archive material (so as to apply it only where such material is already in that format).

35.10  The Minister has also provided a further Regulatory Impact Assessment. This is based on the information which has become available from the Government's public consultation exercise. The Minister says that the amount of such information is limited, but that it seems clear that only the Commission's original proposal — as opposed to the amended text now before the Council — would create significant new burdens.

Conclusion

35.11  In the light of the further information supplied by the Minister, we are now clearing these two documents.



56   OJ No. L 158, 23.6.90, p.56. Back


 
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