A problem with the Scottish EIRs

The Environmental Information (Scotland) Regulations 2004 (“Scottish EIRs”) give individuals the right to request and obtain, subject to certain well defined exceptions, information in relation to the environment from Scottish public authorities.  They implement into the law of Scotland Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information (“the Directive”).  The Directive in turn implements the Convention on Access to Information, public participation in decision-making and access to justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”) into EU law.

In Scotland, like the rest of the UK, the Scottish EIRs are an adjunct to Freedom of Information.  The Scottish EIRs sit alongside the Freedom of Information (Scotland) Act 2002 (“FOISA”) and the Scottish Information Commissioner has the same powers of enforcement in respect of the Scottish EIRs as she does in respect of FOISA.  By virtue of Regulation 17 of the Scottish EIRs, Part 4 of FOISA applies to the Scottish EIRs.  The Regulations make certain amendments to Part 4 of FOISA for when it is being read in respect of the Scottish EIRs.

Section 48 of FOISA provides that no application can be made to the Scottish Information Commissioner in respect of three scottish public authorities: (1) the Commissioner herself; (2) a Procurator Fiscal; and (3) the Lord Advocate, where the information relates to his role as head of the systems of prosecution and the investigation of deaths in Scotland.  Essentially, this means that the Scottish Information Commissioner is prohibited from accepting any application for a decision by anyone that relates to the handling of a request for information under FOISA and the Scottish EIRs made to the Commissioner’s Office and the Crown Office and Procurator Fiscal Service (“the COPFS”).  I’m not a fan of this section and think it ought to be repealed in its entirety, but that is a subject for another time.  As far as the Scottish EIRs are concerned this section is a problem.  Essentially, once the Commissioner’s Office and the COPFS have conducted an internal review there is nowhere else for the requester to go if they remain dissatisfied with the response.

Article 6(2) of the Directive provides that:

In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

The review procedure under paragraph 1 is essentially the internal review procedure provided for by Regulation 16 of the Scottish EIRs.  In respect of every other scottish public authority covered by the Scottish EIRs there exists a right to make an application to the Scottish Information Commissioner and have a decision notice issued by her office together with the ability to appeal (on a point of law only) that decision notice to the Inner House of the Court of Session, and then on to the Supreme Court of the United Kingdom.  There is a decision of a third party that is capable of becoming final.  Therefore, Article 6(2) of the Directive is complied with.  However, these appeal rights do not apply in respect of requests made to the Commissioner’s Office and the COPFS.

It should be theoretically possible to judicially review the internal review response of both the Commissioner and the COPFS.  At a first glance that might be thought to satisfy the requirements of Article 6(2) of the Directive; however, the wording of the Directive suggests that Judicial Review may not be sufficient.  Judicial Review is not an appellate procedure; it is a review procedure.  The Court of Session cannot substitute its own decision for that taken by the public authority.  The Court of Session could, in a judicial review, determine that irrelevant factors had been taking into consideration in respect of assessing the public interest where a qualified exception has been applied; it could not determine that the public interest does or does not support the maintaining of an exception.   Essentially, all the Court can do is uphold the decision of the Commissioner’s Office or the COPFS, or it can quash the decision – it cannot re-take the decision (something that the Commissioner effectively has the power to do when considering an application under section 47(1) of FOISA).  Therefore, judicial review cannot be a “review procedure… in which the acts or omissions of the public authority concerned can be reviewed” because it can only do so to a limited extent.  Therefore, for all practical purposes the decision of the public authority is final, not the decision of a court or another independent and impartial body established by law.

Furthermore, judicial review is expensive and comes with considerable risk in relation to expenses.  While it is theoretically possible for an applicant to represent themselves in the Court of Session, in all likelihood it will necessitate the instruction of a solicitor and at least junior counsel (if not junior and senior counsel); that is expensive.  Even if an applicant manages to represent themselves in the Court of Session; the court fees will be prohibitively expensive to many people.  These fees, payable at various stages throughout the process, will total hundreds of pounds.  The public authority in question will be represented by Counsel and if a requester loses, they may find themselves responsible for paying the public authority’s expenses (although, the Court does retain an inherent discretion in whether to make an award of expenses and to what extent the losing party shall pay the winner’s expenses).  This is relevant because the Aarhus Convention, upon which both the Directive and the Scottish EIRs are based, requires the review processes to be free of charge or inexpensive or not prohibitively expensive (Article 9).  The Court of Justice of the European Union found that the UK had failed to properly implement the Directive when looking at the costs under the English judicial system (see European Commission v United Kingdom).

The problem for the Scottish EIRs gets bigger once consideration is given to the Scotland Act 1998Section 57(2) of the Scotland Act provides that the Scottish Ministers have “no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.”  The Scottish EIRs are regulations and are therefore subordinate legislation.  By applying section 48 of FOISA to the Scottish EIRs the Scottish Ministers have made subordinate legislation that is ultra vires – it is outside of their competence.  For the Scottish EIRs to be compatible with EU law, section 48 of FOISA cannot apply to them; while it does, the Scottish EIRs do not fully implement Article 6 of the Directive.

This problem is easily resolved.  The Scottish Ministers simply need to amend the Scottish EIRs so as to disapply section 48 of FOISA in respect of the Scottish EIRs.  This would enable the Commissioner to consider applications made to her under section 47(1) of FOISA concerning requests for information made to either her office, or the COPFS that engage the Scottish EIRs.  Of course, the Scottish Ministers could introduce legislation into the Scottish Parliament to repeal section 48 of FOISA altogether (and that would kill two birds with one stone).

If the Scottish Ministers do not choose to make the relevant amendments they could be forced to.  All it would take is for someone to go through the process of making a request for environmental information to either the Commissioner or the COPFS, getting a refusal notice which is then upheld at internal review, and making an application to the Scottish Information Commissioner so as to get a notice from the Commissioner stating that no decision falls to be made.  This can then be appealed to the Court of Session for them to make what appears to be an inevitable decision: the Scottish Ministers acted ultra vires when applying section 48 of FOISA to the Scottish EIRs – an expensive process, but one that someone will eventually go down some day.

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