The clauses were debated in the House of Lords. Photograph: Wayne Harrison / Pixabay The clauses were debated in the House of Lords. Photograph: Wayne Harrison / Pixabay

Why do secrecy clauses underpin the Office for Environmental Protection?

Critics of clauses in the Environment Bill that would prevent the new Office for Environmental Protection (OEP) from disclosing information related to its investigations are calling for the government to answer key questions about why they were put into the legislation.

On 30 June in the House of Lords, Lord Goldsmith of Richmond Park, the environment minister, was asked by Lord Lucas, Lord Rooker, and Baroness Jones, to explain why the clauses were put into the legislation, but many are still unsatisfied by the government’s response.

Lord Goldsmith said that he agreed that it was important that the OEP “operates transparently”, but added that “it must be allowed the discretion necessary to operate effectively”.

He also said that it is important “to have a safe space where public authorities can confidently share information and allow the OEP to explore potential pragmatic solutions before issuing any formal notices”.

The proposed amendments to protect access to environmental information, which were originally tabled by Former Freedom of Information (FOI) minister and Labour life peer Lord Wills, were withdrawn during the session.

However, members of the House of Lords that remain concerned about the potential reduction in transparency have said that they will continue to pursue information about key clauses in the bill and will potentially force a vote in September if they are still not satisfied by the government’s answers.

“My understanding is that we will have a decent time to sit down with ministers over August and work out exactly what their position is,” Lord Lucas told ENDS.

“I don't think that the explanation given by the minister was satisfactory, but I suspect it was what he's been told to say.”

Lord Lucas added: “I want to get into the details of why the government thinks that the position they're taking is justified, and I haven't understood that.

“The natural process would be to sit down and spend a couple of hours with civil servants and with the Campaign for Freedom of Information and go through things in detail and come out at the end of it with either a determination that we're going to push this to a vote or a compromise. Those are the options going forwards.”

Maurice Frankel, the director of the advocacy group, the Campaign for Freedom of Information, agrees that important questions about clauses 42 and 45 in the bill remain unanswered.

“Lord Goldsmith had a pre-written response to the amendments that did not take into account the case made for the amendments,” he said.

“These amendments can come back at the report stage. That is going to be the critical time now.”

Frankel says that the explanatory notes that have been published alongside the bill are misleading as they create the impression that the bill won’t override existing Environmental Information Regulations (EIR) and FOI legislation.

“The question is: Why are they doing that?” he said. “Are they doing that because the person who wrote them doesn’t understand the actual position or are they deliberately misleading?”

The latest attempt to reduce access to environmental information comes after a 12-month period where FOI and EIR legislation has been used several times to break embarrassing stories about the poor environmental performance of UK companies and government agencies.

In December last year, data obtained using freedom of information legislation revealed that the Environment Agency had dramatically reduced the frequency that it attends water pollution incidents.

In February this year, figures showed that the Environment Agency had failed to prosecute or fine any of 243 documented violations of the “farming rules for water”.

Lord Lucas said he wasn’t surprised at recent efforts to push back against freedom of information legislation.

“I want to make sure that the mechanisms we have in place allow the maximum possible degree of openness, because I think that the environment touches all of us,” he said.

“You need to be able to trust the companies and the government agencies involved and see that they are actually doing what they are supposed to be doing.”

He added: “Having openness is always an inconvenient thing for government agencies and governments because it means you're under much more scrutiny than you might otherwise be.”

Frankel agrees that making environmental information harder to obtain could help the government stop embarrassing information from being revealed.

“The government has always got an interest in not having inconvenient disclosures coming out,” he said. “It may well suit the government to limit the right of access under the bill, because access to information can highlight failings.”

The battle to amend clauses 42 and 45 in the Environment Bill comes after a lengthy legal battle over freedom of information that was focussed on a little-known government unit.

In June, the government lost a legal battle to prevent the release of documents about a unit known as the Clearing House, which was accused of obstructing the release of material requested under the FOI Act.

The Clearing House circulates details of certain FoI requests by journalists, campaigners and others around Whitehall and also advises on how to respond to them.

The political website OpenDemocracy first requested in 2018 that the Cabinet Office release information about the Clearing House but it declined, claiming exemptions and that it would not be in the public interest.

When the information commissioner backed OpenDemocracy, the government appealed.

In a written judgment that was made public on 8 June, Judge Hughes backed the information commissioner, concluding that there was a “profound lack of transparency about the operation” that “might appear … to extend to ministers”.

If clauses 42 and 45 in the Environment Bill are not amended it could have a far-reaching negative impact and undermine the credibility of the OEP, according to Frankel.

“As things stand, we’ve got an Environment Bill that undermines environmental protection by preventing public discussion and the public being informed about current threats to the environment,” he said.

“That is not the aim of the Environment Bill, but that is partly what it is going to bring about.”


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