25 - Access to advice (including legal advice): Aarhus and EIR

As a wise man once said, it’s not possible to make an omelette without breaking eggs…

An idiom taken and run with (NB – not advisable with actual eggs beyond the age of 7 and without adult supervision at an organised sports day) by my colleague Alex Shattock in his presentation at last Monday's ‘Access to Environmental Information Update’ webinar. For those unable to attend, the resources from the webinar are available here. Alex’s presentation starts around 20 minutes in. It really is a tour de force – who knew that disclosure of environmental information had such clear parallels with a brunch menu?

One of the cases he touched on was the judgment of Sir Duncan Ouseley, the approved version of which has recently been made available, on an application for specific disclosure made in ongoing litigation: Friends of the Earth Limited v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 3255 (KB).

In that case, FOE challenges the Secretary of State’s decision to grant planning permission for the mining of coking coal at Whitehaven in Cumbria, with associated infrastructure. The Inspector appointed to consider the application at Inquiry submitted a lengthy report to the Secretary of State, recommending that permission be granted subject to conditions. In his decision letter, the Secretary of State accepted that recommendation.

FOE sought specific disclosure of the submission made by the Planning Casework Unit of the Department to the Secretary of State. The submission was not referred to in the Secretary of State’s decision letter, but FOE “came to understand” that policy advice had been given to the Secretary of State and asserted that he had relied on it in reaching his decision.

Having reviewed, in broad terms, the disclosure provisions in the CPR as they applied to judicial review proceedings and the duty of candour – Sir Duncan Ouseley also had to considered arguments advanced under Article 6 ECHR and the Aarhus Convention. Neither availed the Claimant. With regards to the Aarhus Convention, Sir Duncan Ouseley stated as follows at para 24:

“Neither does the Aarhus Convention assist the Claimant in Article 6(9), which requires “the reasons and considerations on which the [environmental] decision was based” to be accessible to the public. “Considerations” here does not mean everything which passed in front of the Secretary of State considered but the material factors he considered and upon which he gave his reasons. That obligation is amply met by the Decision Letter and the Inspector’s Report”.

The judgment – or at least, some of its reasoning – has not evaded criticism in some quarters, and it is understood to be the subject of an application for permission to appeal. For more thoughts on the judgment, please tune into the Q&A at the end of the webinar, from around 1h 14 mins in.

A second case which warrants a mention in this context (which was discussed during my presentation on EIR exemptions) was the FTT’s decision in National Highways Ltd v Information Commissioner [2023] UKFTT 00895 (GRC).

NHL had received a request for disclosure of a QC’s Advice which had been referred to in a ‘briefing note’ from NHL to DfT explaining why it had selected one preferred option for the route of the A27 Arundel Bypass project over the option it had initially referred.NHL refused to disclose the Advice, relying on reg 12(5)(b). The ICO agreed exception was engaged but held public interest was in favour of disclosure.

The FTT overturned the ICO (in robust terms). “In our view, the Commissioner’s decision was surprising and clearly wrong, for nine reasons”.

1. Failure to attach sufficient weight to the “crucial role which LPP plays in our justice system and the consequential need for a compelling reason to be shown to justify denying any public body the right to rely on its protection in any particular case”
2. That central flaw was “also evident” in the factors the ICO relied on in favour of disclosure
3. The FTT considered that a number of factor or circumstances relating to the QC’s Advice weighed against rather than in favour of disclosure, including that the Advice was recent; the issues to which the Advice was directed were ‘live’ and ‘current’ ; given the history of the matter, there was a strong chance of it attracting a legal challenge; and there was no suggestion the Advice had been manipulated or misinterpreted by NHL.
4. The FTT also saw “some force” in the point made in other cases that it might be seen as unfair, where matter remained live, in only one party seeing the other’s Advice.
5. The ICO’s point that decision would not affect public confidence because it did not set a precedent was “a poor one”
6. The FTT saw “no force” in ICO’s position of the Advice having been “instrumental” in bringing about or justifying a change in NHL’s position
7. There was nothing in the requester’s point about NHL not specifying or explaining the advice in the briefing note (or another document)
8. The requester’s other points added nothing of substance, being really focused on her sense of grievance about matters such as consultation
9. The ICO had attached “disproportionate importance” to the presumption in favour of disclosure under reg 12(2). “The presumption is certainly important … But all things being said, the presumption is only that. By itself if it no counterweight to the powerful imperative for LPP to be upheld unless a compelling reason to the contrary is made out”.

This is a reassuring development – particularly in light of the ICO’s decision and the earlier FTT decision in Brookshank v Information Commissioner (EA/2018/0226) in which the FTT had ordered the disclosure of Instructions to Counsel, despite the reliance placed by the local authority on such documents attracting legal advice privilege.

For more on obtaining environmental information for use in judicial reviews or other challenges, and on the EIR exemptions please do have a look at the webinar recording linked above – together with Nick Grant’s excellent review on disclosure of viability assessments and Landmark Chambers' very own ‘Yoda of planning law’ James Maurici KC on the role of the Aarhus Convention in EIR case-law.

This blog post was written by Jacqueline Lean.

Authors

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.