§ The Minister for the Environment and Countryside (Mr. David Maclean)
I beg to move,
That the draft Environmental Information Regulations 1992, which were laid before this House on 8th December, be approved.I shall start with a disclaimer. Having heard the points of order after Scottish questions today to the effect that too many English Members of Parliament had participated, and having sat through a large part of the Scottish debate that has just finished, I thought it right to point out to the uninitiated who, hearing my Scottish accent, might think that this debate is a continuation of Scottish business, that I am introducing Great Britain regulations.
These regulations give the public new legal rights of access to environmental information. As long ago as 1984, we accepted a recommendation by the Royal Commission on Environmental Pollution that thereshould be a presumption in favour of unrestricted access for the public to information which the pollution control authorities obtain or receive by virtue of their statutory powers".The Government have consistently supported the principle that the public should have rights of access to environmental information, and we have demonstrated our commitment by establishing public registers of environmental information through successive legislative provisions.
In seeking the support and agreement of the House to these regulations, I should like first to say something about the background, then to describe the overall approach and then to deal with some of the issues which have emerged in the course of preparing the regulations and consulting on them.
First, the background to the regulations is that they implement United Kingdom policies, but they take their present form because they also have to apply European Community directive 90/313 on freedom of access to information on the environment. When the text was finalised during the Irish presidency in 1990, we in the United Kingdom were already well advanced in the process of putting in place statutory registers of environmental information. We supported the overall aims of the directive not only because it was consistent with our national policy, but because it placed comprehensive duties to provide access to environmental information on member states elsewhere in the Community.
We published a consultation paper in January this year setting out our proposals for implementation of the directive. We received more than 170 responses from a wide variety of bodies covering industry, local government and the voluntary sector. As one would expect, most people welcomed the principles behind the proposals.
At the end of October this year, we invited comments on draft regulations to implement the directive, together with draft guidance intended to help provide the detail for which many consultees have asked. Again, we received a substantial number of responses to the draft regulations and draft guidance. We have considered the responses carefully and have made a number of changes to the draft regulations and guidance. The draft regulations, taking account of those amendments, are before the House tonight.
505 During the drafting of the regulations, we had to consider extremely carefully a number of technical drafting issues. I shall come back to those later. That has had an effect on the time available for consultation and the consequent timetable for parliamentary consideration. I am sure that the House will agree, however, that it is imperative that we do everything we can to honour our obligations in EC law. We are especially concerned about the performance of some other member states in that respect. It will not help our arguments in Brussels if we fail to meet Community requirements and then criticise others for the same failing—so we do not intend to fail.
In drafting the regulations, we needed to acknowledge that there was already a substantial body of existing legislation covering public rights of access to environmental information. We wanted to be sure that people continued to enjoy those rights. Therefore, the approach followed in the draft regulations is to apply their requirements to environmental information that is not already available on request under any existing statutory provision. In addition, to ensure compliance with the directive, the arrangements for making available information to the public under statutory provisions must be sufficient to satisfy the requirements set out in the regulations.
Under the regulations, "relevant persons" must make available environmental information on request. I hope that the House will bear with me if I continue to use the term "relevant persons" in the rest of my remarks as shorthand for all the bodies subject to the regulations' requirements. Relevant persons have up to two months to respond to requests for information. Refusals must be in writing and show the reasons. Relevant persons may charge for making information available, provided that the charge does not exceed a reasonable amount. Failure to comply with the regulations will be a breach of duty and an aggrieved person could seek a judicial review or pursue the matter through a private action in the courts.
Relevant persons can protect certain types of confidential information. That could include information relating to international relations, national defence or public security, internal communications or to commercial or industrial confidentiality. Relevant persons will be under a duty to protect other types of confidential information—for example, any of the types of information which may be treated as confidential and are already the subject of restrictions on disclosure. Other types of information that relevant persons will be under a duty to protect include personal and volunteered information, unless the supplier of the information agrees to its disclosure or it is otherwise authorised.
I shall now deal with some of the comments made by consultees on the draft regulations. First, on the scope of the regulations, we have carefully considered whether we should include a list of bodies to which the regulations apply. We are conscious, however, that any list that we include in the regulations will soon become out of date and will need frequent updating. We also have to recognise that production of a list which is not definitive may not be very helpful to anyone and could expose us to challenge in the European Court of Justice for failure to implement the EC directive. It will be for the bodies concerned to take a view on whether they are "relevant persons" under the regulations. Ultimately, it would be for the courts to rule on those questions.
506 The question of the extent to which charges should be made for supplying information has attracted much comment. There is the very reasonable concern that charges will be too high and will discourage the public from requesting information. However, there is the equally reasonable concern that new obligations to supply information will bring extra costs. We have tried to strike a balance between those concerns. There is therefore a discretionary power to make a charge in respect of the costs reasonably attributable to the supply of information. The payment of such a charge can be made a condition of supplying information. Holders of information can make a charge to cover their costs, and those requesting information may be charged only a reasonable amount. Inspection of statutory public registers will remain free of charge.
§ Mr. Simon Hughes (Southwark and Bermondsey)
I do not wish to anticipate what others may say, but one of the questions which always crops up when one talks of "a reasonable charge" is whether it is the real, additional cost to the provider of the information, or levied according to a more subjective test. Is it the Government's view that the cost should be only the additional cost to the provider of providing that information to the person who has requested it?
§ Mr. Maclean
I do not intend to pontificate on what may be the reasonable cost. I shall not be the judge and jury on that matter. I have introduced the regulations and made a requirement that the cost shall be reasonable. The company must ensure that the cost is reasonable. If the person who requested the information feels aggrieved and feels that the cost is not reasonable, he or she has rights of redress.
I stress the fact that inspection of statutory public registers will continue to remain free of charge. The House should take that fact on board. We have also considered, but rejected, suggestions that we should prescribe a standard charging regime applicable in all cases. A standard charging regime would place a straitjacket on all the many and different bodies responsible for providing information, and would inevitably fail to take account of all their different circumstances and how they operate. The regulations therefore leave it to the discretion of the relevant person concerned whether to charge for information and, if so, how much.
On the key issues arising from comments on the exceptions to the right to information dealt with in the regulations, there has been concern that information of commercial value provided to environmental regulators and other relevant bodies could become available to competitors through the arrangements set out in the regulations. Those fears are unfounded. Where there are statutory restrictions on the release of commercially confidential information or trade secrets, they must continue to apply under the regulations. Where other information has been provided in response to statutory requirements, the relevant person has discretion not to provide the information to others if it is commercially confidential. Where information has been provided on a voluntary basis, the relevant person is under a duty not to provide the information to others without the agreement of the supplier. The regulations are not a charter for one company to poach commercially sensitive information from another.
507 I shall now deal with concerns that the provisions allowing relevant persons to refuse to supply information if it is contained in internal communications or incomplete documents provides a ready formula for refusing all requests for information. The provisions are aimed at enabling organisations to conduct their internal administrative work in private. I hesitate to generalise on those issues because every case would need to be dealt with on the facts available, but that is precisely the point: it will be a matter of fact whether a document really is incomplete or whether it really is an internal communication. In addition, relevant persons will be under a duty to separate out environmental information and make it available, unless it is incapable of being separated. Ultimately, a court could be asked to take a view on those matters and be the final judge.
As for volunteered information, I know from my experience in the Ministry that regulatory authorities and industry find it very helpful to discuss information volunteered by industry when considering applications for authorisations or consents. This is information which a company will not be required by statute to disclose, but none the less it is of immense assistance in helping the regulatory authority to understand the operating practices and background of the company concerned.
Although much of that information will be "environmental information"—under the terms of these regulations, it is quite likely—indeed, I am fairly certain —that it would not have been volunteered in the first place if the supplier believed that it would be passed on to somebody else, particularly competitors. We recognise those concerns, and the regulations therefore provide relevant persons with no discretion at all to disclose volunteered information to others without the prior consent of the volunteer supplier. We think that that is essential to ensure the continued supply of important volunteered environmental information.
I must now refer to rights of redress for a person who is refused information. Under the regulations, everyone refused information has a right to that refusal being in writing and the reasons for the refusal being specified. That should establish clearly why the information has been refused, but it will also provide an opportunity to resolve any misunderstandings which may have arisen.
If a person requesting information believes that he or she has been wrongfully refused, additional rights are available under the regulations. He or she may seek judicial review of the decision concerned or pursue the matter through a private action in the courts. It should be of some reassurance to suppliers of information who feel that they have been financially damaged by its disclosure that they could, if they wished, pursue a claim for damages by a private action. But court actions are not welcomed by anyone. We saw in the last debate how only lawyers become rich as a result of such actions. It will be the responsibility of every relevant person to be open and fair in how requests for information are dealt with and they must do everything possible to explain why, if it really is necessary, information cannot be supplied.
There is clearly much support for the general principle of providing the public with access to environmental information. I have many more pages of compelling arguments which could support the regulations, but that 508 information is entirely confidential and I cannot reveal it to the House, so I merely commend the regualtions to the House.
§ Mr. Chris Smith (Islington, South and Finsbury)
I am tempted to begin by observing how far we have come in the past five years. Five years ago, I introduced into a House a private Member's Bill, which is now the Environment and Safety Information Act 1988. Surreptitious attempts were made by the Government, emanating especially from the Whips, to stifle the Bill at birth. Eventually, however, a combination of public opinion, governmental embarrassment and Bernard Levin managed to ensure that we got the Act on the the statute book. I pay particular tribute to my late and noble colleague the Baroness Ewart-Biggs, who helped to pilot that measure through the House of Lords subsequent to its passage through the Commons.
Matters have moved on since then and I welcome the Government's introduction of regulations to improve access to environmental information. It is crucial that the general public has as much access to information about what is happening to the environment as possible. After all, environmental degraduation affects us all. Even the Prime Minister appears to have woken up to this fact. About 16 months ago, he made a speech at a conference organised by The Sunday Times, in which he said:We have opened the door to environmental information.He was a little ahead of himself in that claim, because it is only now that the door is really open. He continued:
Every individual, every group, will in future have access to the information they need in order to act as an environmental watchdog. That information is the citizen's right, and the Active Citizen will use that right constructively.The Prime Minister was correct. The rhetoric was fine, the objective is excellent, but I am afraid that the regulations do not measure up to the ideals. The Government are submitting them late—this is the last possible moment at which they could do so. They are seriously inadequate in a number of key respects. Not only do they fall far short of embracing the spirit of European Community directive 90/313, but I have some major questions about whether they fulfil the letter of the directive.
The Joint Committee on Statutory Instruments has unearthed a couple of explanatory documents from the Department of the Environment that are helpful in so far as they go, but they do not address some of the concerns raised outside the House by Friends of the Earth and other organisations. I have a list of some of those concerns. First, what actually counts as environmental information? Paragraph (2)(b) of regulation 2 speaks ofany activities or measures … which adversely affect anything mentioned in sub-paragraph (a)".That is water, air, soil, fauna, flora and so on. How will this work in practice? How will we know whether a particular piece of information is regarded as adversely affecting some of the essential components of our environment?
§ Mr. Roger Evans (Monmouth)
I accept the point that the hon. Gentleman makes, but I do not understand—perhaps he would kindly explain—how the drafting in the regulations differs materially from article 2(a) of the European directive on the point that he has just described.
§ Mr. Smith
I am not criticising the regulations for differing from the directive in that regard. I shall come on to a number of other points of that nature, but that does not invalidate the point, which is that if we are to have regulations, we need to be certain how the basic definitions in them will be interpreted.
Let us take two examples of what counts as environmental information. One has recently come to public notice. The Secretary of State overturned a recommendation by Her Majesty's inspectorate of pollution that information about the inputs to power stations run by National Power should be made accessible to the public. National Power contended that this information was not relevant to the environmental impact of running power stations. HMIP demurred. The Secretary of State clearly sided with National Power. Inputs to a power station may not directly impact on the environment, but will have an inevitable consequence eventually on the environment once they have been used through the power station. In such cases, does that count, under the regulations, as environmental information? That is a valid question to which the answer is unclear.
Let us take another example, that of the contracts that British Nuclear Fuels Ltd. had for the reprocessing of nuclear wastes in the new thermal oxide reprocessing plant at Sellafield. The nature and content of those contracts have never been made public, yet, they have a considerable impact on the future running of the plant and are crucial to an assessment of the case as to whether that plant will have an environmental impact. In that instance, it is unclear whether that counts as environmental information. We need to have the broadest possible definition, but will that be what the regulations mean in practice? There is a serious question mark about that, and it ought to be addressed.
Secondly, the definition of "response" in relation to the two-month deadline is unclear. There is a world of potential difference between a mere acknowledgement of a request and the provision of a full answer, both of which could qualify as a response. Surely this ought to be more clearly spelt out. If a response is to be required within two months, we ought to know precisely what sort of response is required. Will it have to be more than an acknowledgement? The regulations are ambiguous about that.
Thirdly, it is worrying that a charge can be made for the provision of information. That has already been the subject of an exchange across the Floor of the House. Notwithstanding the qualification of reasonableness, there is always a danger that the ability to charge will be used as an effective barrier to the seeking of information. Rather than removing my concern about that fact, what the Minister said in response to questions across the Floor of the House intensified it.
Challenging a judgment of reasonableness in the courts would be a prohibitively expensive course for the applicant to embark upon. While charging of the public for access might be reasonable if strict rules about the actual costs incurred by the body providing the information were to be inserted, where no such rules apply—there are none in the regulations it is possible that the ability to charge will be used to prevent access.
Fourthly, the exclusion from access to information relating to matters affecting international relations is a broad definition, putting anything with a third-hand connection with international relations outside the scope 510 of the regulations. What will this involve—action taken in accordance with the biodiversity treaty, international discussions at Copenhagen on ozone depletion or in Paris about dumping at sea, safeguarding the shipment of plutonium at sea? All those could conceivably fall under the definition of the exclusion. None of them should.
Let us take another specific example—matters relating to the import of toxic wastes. The Basle convention and the recent Luxembourg agreement are matters subject to international discussion and agreement and conceivably related to international relations. In this respect, I fear that the Minister has not been particularly forthcoming. During oral questions to the Secretary of State for the Environment on 9 December the Minister of State touched on the Basle convention and the import of toxic waste, following the Luxembourg agreement. He answered my hon. Friend the Member for Southampton, Itchen (Mr. Denham) as follows:We have just negotiated a regulation in the EC which will, for the first time, give this country the power to turn off the tap of waste coming from developed countries for disposal here.Later he answered a subsequent question as follows:Waste for final disposal should be dealt with in developed countries. That is what we have negotiated and we are implementing national plans to ensure that it is put into place when the directive is ratified."—[Official Report, 9 December 1992; Vol. 215, c. 836.]That is all well and good. The impression given was that, following the agreement at Luxembourg, the Government would get stuck into the process of drawing up measures to ensure that waste coming into Britain from developed countries would be stopped.
Only six days beforehand, however, in an answer to my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller), the Minister had said of the regulations that would be considered following the Luxembourg agreement:We expect no change as a result of the regulation to existing practice within the United Kingdom."—[Official Report, 3 December 1992; Vol. 215, c. 289.]It appears, then, that the Government speak with two voices. On 9 December they give the House the clear impression that there will be change, new regulations, action. When they answer my hon. Friend on 3 December, they say that there will be no change.
Why? Having sight of the relevant documents would help, but I suspect that they will fall under the exclusion of matters "related to international affairs". That is a broad-brush exclusion.
Fifthly, the regulations lack any realistic appeals procedure for occasions when access is denied. Article 4 of the directive speaks of the need for some such system:A person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision in accordance with the relevant national legal system.So the Government are complying with the terms of the directive by saying that judicial review is possible when an access request has been refused.
There are, however, a number of problems. Judicial review can be a costly and cumbersome procedure. With the latest Government cuts in legal aid there is no guarantee that those in need of financial assistance to mount such a review would be able to do so. The only matter that can be considered by such a review is a matter of procedural fairness, not a matter of the real substance of a refusal. That too is a limiting factor.
511 In most cases judicial reviews do not permit of the cross-examination of witnesses or the discovery of documents, so it would be difficult realistically to contest a claim of refusal of access on grounds of commercial confidentiality. It would be much better if the Government adopted the proposal that we submitted many months ago in our freedom of information Bill at the start of this year —a proposal for a proper system of appeal to a commissioner who would act on behalf of the citizen, with the back-up of an appeal to a tribunal for the citizen, the relevant authority or a third party, if the commissioner's action did not resolve the issue. The Government have not got the need for a genuine appeals mechanism right.
Sixthly, there is also an exclusion from access for matters subject to a local or public inquiry or hearing. It baffles me why the Government included this provision. The directive states that member states may—not shall —provide for refusal of access for a number of reasons. It may be refused where it affectsmatters which are, or have been sub judice, or under enquiry (including disciplinary inquiries), or which are the subject of preliminary investigation proceedings".There is no requirement that the regulations should exclude public inquiries, and it seems that the Government are going rather further than the directive suggests they should by cluding local and public inquiries.
The regulations also fly in the face of existing practice at such inquiries, where the earliest disclosure of each side's case has consistently been argued for by the Department of the Environment. A vital feature of our public inquiry system is that full information is available to the public throughout the proceedings. These regulations would permit that principle to be overturned. Is this a case of backtracking by the Government, and if so why? I do not understand why the Government would want to diminish the public's access to information that they have at the moment. Why not omit public and local inquiries from the list of exceptions?
§ Mr. Roger Evans
Perhaps I can assist the hon. Gentleman. I have not examined the French text of the directive, but it looks as though the directive is directed towards a dossier in the process of compilation by, for instance, a French examining magistrate, which is not made public until the conclusion of that process. that would be logical and understandable. Meanwhile, I agree with the hon. Gentleman: I cannot see how that can possibly be relevant to the wording of regulation 4(2)(b). The other point to which he has drawn attention, regulation 4(5), seems a classic case of mistranslation.
§ Mr. Smith
The hon. Gentleman is quite likely to be right about the origin of this feature of the regulations. It seems on this point that the directive permits a Government to decide to be more open when drafting their own national regulations, and the Government should have followed that principle when drawing them up.
Seventhly, one of the other exclusions from access mentions commercial confidentiality. Regulation 4(2)(e) tells us that information can be treated as confidential if it isinformation relating to matters to which any commercial or industrial confidentiality attaches".Note the words "relating to". They allow a fairly broad scope.
512 Compare and contrast this with the wording of the Environmental Protection Act 1990. Section 22(11) talks about information being commercially confidentialif its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person.The Government have therefore taken two different approaches. In the 1990 Act they specifically said that commercial confidentiality should be allowed only on tough grounds where it was judged that disclosure wouldprejudice to an unreasonable degree the commercial interests of that individual or person.The definition of exclusion on the grounds of commercial confidentiality is remarkably broad in the regulations:information relating to matters to which any commercial or industrial confidentiality attaches".The Government have adopted the easiest possible approach to drawing up the regulations. They have been minimalist in the way in which they have interpreted the requirements of the directive. Where it has been possible to exclude information from access, they have taken the opportunity to do so.
They should not have approached the exercise in that way. They have acted late and grudgingly. They have done the bare minimum that they needed to do, and even that is questionable in some respects.
The regulations raise serious questions about definition, interpretation and exclusion. They could have represented a real provision for full access to environmental information and a real strengthening of citizens' power. Instead, we have a flawed set of proposals. I sincerely hope that the Government will think more carefully about this and come forward in the near future with revisions that meet some of the objections of which they need to take account. As they stand, I fear that the regulations, although a small step forward, are a sadly missed opportunity.
§ Mr. Roger Evans (Monmouth)
I respectfully suggest that the hon. Member for Islington, South and Finsbury (Mr. Smith) has been a little curmudgeonly in his response to the regulations, which are a classic piece of Euro legislation in the very best sense.
Enormous benefits will flow from the amount of environmental information that will become available as a result of the regulations. There is no virtue in deceiving people through ignorance. The opposition that has been mounted in certain parts of the press to the publication of the history of landfill sites, lest that adversely affects the development of houses thereon at a later time, is wholly unfair and unrealistic. People have a right to know.
It is interesting that seven substantive criticisms have been made of the way in which the regulations have been drafted. However, it appears that the Government and the parliamentary draftsmen—with one exception, to which I have already referred—should be heartily congratulated and have followed the drafting of the directive.
The first criticism made against the regulations was the test of "adversely affect." It may well be that that raises an issue of fact, but the actual wording isadversely affect … or likely adversely to affect.That is wide language, and, provided that there is something conceivable and practical in the way of a factual nexus between the information and the adverse reaction to it, a court will order disclosure. This is how, for example, the treaty of Rome is creating actionable rights for 513 individual subjects for the first time in areas of public law that we have never known in this country. That is why it should be welcomed. That change represents, no doubt, in the language of the hon. Member for Islington, South and Finsbury, the spread of civil liberties in a practical, direct and important manner. I have no doubt that if there was a refusal to disclose information on the inputs to power stations, and provided that there is some scientific basis, as we strongly suspect that there must be, between what goes in and what might come out, that could be challenged in the courts for the first time.
§ Mr. Chris Smith
Will the hon. Gentleman therefore give that message to the Secretary of State, who has said that precisely such information shall be kept confidential?
§ Mr. Evans
We are debating the regulations because we are going to change the law; the Government have accepted that. Under the regulations that we are about, I hope, to pass, there will be power for the first time to challenge such a decision to refuse to disclose any information.
Let us re-examine Sellafield. I have no doubt that the undesirable and highly secretive practices of the nuclear industry will be exposed to the ray of truth and light to an extent that we have never seen before. Such disclosure will not be limited just to ourselves. Those of us who have always been suspicious of the French habit of putting nuclear power stations near Cherbourg and along the coast of Brittany, opposite the Channel islands, will now have an opportunity, for the first time, to press the French nuclear industry to reveal a whole host of information that might be of great interest.
The whole point about Community action rather than national action is that pollution knows no national frontiers, and the regulations are an excellent example of the Community at work doing a great deal of good.
Complaint has been made about charging and overcharging for the supply of information. Surely some reasonable payment must be made for the burden on various organisations that must supply information. Otherwise, every otiose and unreasonable request would simply be imposed as an additional burden upon the taxpayer, ratepayer or a commercial concern, which would pass that on through its prices to the consumer. We have already accepted under the Data Protection Act 1984 a system of charging. If one has a right to know, it is reasonable that one should pay a reasonable charge.
I do not understand why a complaint about disclosurecapable of affecting international relationsshould be laid at the door of my right hon. Friend. That is the precise language in paragraph 4(2) and, in any event, such a restriction, even if it were taken up, would not apply to inter-Community relations. I should be grateful to my hon. Friend the Minister for guidance on that when he winds up.
The hon. Member for Islington, South and Finsbury has also complained that there is no proper appeal procedure, but I would suggest to him that judicial review is a cheap, economical, speedy and effective process for challenging Ministers. Even on legal aid we have seen the radical growth of the ambit and scope of that remedy in recent years. Individual legally aided plaintiffs have challenged Ministers with increasing enthusiasm, backed up by the legal profession. law centres and so on.
There is a right under order 53 of the rules of the Supreme Court to obtain discovery of documents and a 514 power to order interrogatories. Cross-examination is not impossible and it may be ordered at the discretion of the judge. Real remedies of substance are offered, by way of the process of judicial review, which is well established and is effective.
As to confidentiality in respect of commercial transactions and the phrase "relating to", that phrase is customary and well known and it is used in the case of discovery of documents "relating to" the issues in an action. What is proposed in the regulations is perfectly conventional and has wide-reaching implications.
However, I share the amazement and puzzlement of the hon. Member for Islington, South and Finsbury about local inquiries. For years there has, quite properly, been an increasing degree of the prior disclosure of information. I do not understand how the exception of local inquiries has crept into the regulations, unless because of a mistranslation.
I am also puzzled about another, connected matter. Regulation 4(2)(b) refers toinformation relating to, or to anything which is or has ben the subject-matter of, any legal … proceedings".I would understand the enthusiasm of the French Government to preserve secrecy if a secret dossier were being compiled, given the inquisitorial system that operates in that country. Under the British system, however, all documents in the court process—whether they are pleadings or affidavits—are normally deemed to be public documents which are matters of public record.
The provision is peculiar; I do not know why it was included in the first place. It also leads to a serious anomaly. Let us suppose that a plaintiff sues a polluter for defamation, or a polluter sues someone else on the same grounds, and those proceedings compromise in the traditional way of the record being withdrawn. The information will then become secret, and the regulation encourages it to remain secret. I do not see why matters that are the subject of litigation should not be in the public domain when our court system is public.
My constituents are very anxious about the effect of proposals that are now the subject of a public inquiry: we are awaiting the results, which will eventually reach the Secretary of State for Wales. They are concerned about the health consequences, and the effect on the environment, of opencast coal mining on the Blorenge at a site called Pwll Du. There has been a good deal of community action of the classic variety, which advances human knowledge, understanding and public awareness. I am thinking particularly of the work of Doctors Taylor and Temple, who have exposed real public concerns about the environmental effects of opencast mining.
Such arguments should not take place in secret. The cards should be placed face upwards, and the promoters of opencast coal mining—or any other activity that may have adverse effects on health—should be forced to publish all the relevant information so that the public may form their own judgment and independent experts may do the same. That is precisely what the statutory instrument proposes, and I commend the European Community for its imagination. Here is a classic example of something that can be done better at Community level.
§ 9 pm
§ Mr. Simon Hughes (Southwark and Bermondsey)
In February this year, on behalf of my party, I launched a document entitled "Good Government for a Greener 515 Britain"—which no doubt was read assiduously by all hon. Members. I would like to remind the House of what I said then and I think that this is the first time in nearly 10 years that I have quoted my own words in this place, as I crave the House's indulgence.
Secrecy is the number one killer of the environment in Britain today, and a Freedom of Information Act is the best possible deterrent to this type of crime. Our eco-system is being let down by our political system.The Government often uses the excuse of commercial confidentiality to keep facts from its citizens. Yet it is the countries which trust their citizens with information which are not only freer than us but more prosperous. Our unaided senses may tell us that something is wrong with the area we live in or the food we eat, but only hard information will point the way to remedy it.The citizen must be properly informed. Green knowledge is green power.Like the hon. Member for Monmouth (Mr. Evans), I am enthusiastic about what the treaty of Rome and subsequent legislation have done for freedom of information and for the environment. I have always been enthusiastic about the European Community, partly because it has pushed us further and faster towards good environmental practice. I therefore welcomed the directive requiring member states to introduce legislation to enact those proposals.
As the hon. Member for Monmouth rightly said, one of the great advances in our legal system in recent years is the interest in public law on rights to environmental information. The fact that many associations and individuals now practise environmental law is not unrelated. There is now an Environmental Law Federation, and some practitioners deal with almost nothing else. That is because the public want or require information, and often have to take legal action to avail themselves of their rights.
In recent years, Government legislation has done something to improve those rights. As he rightly reminded us, the initiative of the hon. Member for Islington, South and Finsbury (Mr. Smith)—supported by freedom of information campaigns—also put a Private Member's Bill on the statute book; but we needed more, and the statutory instrument gives us the opportunity to secure more.
Like other hon. Members, I shall not vote against the regulations because to do so might prevent us from complying with our European Community obligations—and far be it from me to wish that on the House. As the hon. Member for Islington, South and Finsbury said, we are cutting it pretty fine. This is the last environmental debate of 1992 and of the British presidency, comment about which is often made elsewhere, and we are just in time in squeezing in these regulations, which we have an obligation to enact by the end of the year—so we had better be good and allow them to go through, even if we have some criticisms about their inadequacy.
The regulations are welcome but, as the hon. Members for Islington, South and Finsbury and for Monmouth have said, we could and should have done better. I, too, shall suggest where we must do better and hope that the Minister, it being the week before Christmas, will be in a responsive mood and will say, "Yes, I accept that this is not a perfect document and we shall see whether we can improve it in due course." I hope that there will be an 516 opportunity to review the use of the regulations before too long. One of the problems with the House is that it passes much legislation that is not consolidated, which would help the public. Often we do not review legislation or regulations until we have discovered, far too late, that they are not working too well.
§ Mr. Roger Evans
Article 8 of the directive places an obligation on the Government to report to the Commission within four years.
§ Mr. Hughes
Given the importance of environmental information and legislation, I hope that we shall hold an annual debate on the state of the environment, in which Ministers and other hon. Members could comment on the progress being made. Additionally, as with most Community legislation, there is a duty on the Government to report back for a Communitywide review. One of the benefits of this legislation will be that we will have access to information about what is going on not only in Britain but in other European Community countries—for instance, about nuclear power in France, pollution of rivers and seas by coastal countries, and so on.
The Minister explained in his introduction that the regulations do not extend to Northern Ireland, and nearly told us why. We know why: the normal reason is that legislation for Northern Ireland is dealt with separately; none the less, we have a duty under the treaty to ensure that Northern Ireland is covered. I should like to know when the people of Northern Ireland will be given the same rights as the rest of us. Unless I have missed something, there is barely any time left to comply, and I should be disappointed if on 1 January the people of Northern Ireland found themselves unable to avail themselves of the same rights as the rest of us.
I shall not elaborate on the criticisms that have been made but rather shall concentrate on those which seem the most germane. Lest I be accused of traditional Opposition churlishness, I should say that the regulations have been criticised by environmentalists as well. I ask the Government to take that criticism seriously.
There is a problem with the term "relates to the environment", which is the definition given in regulation 2(1)(a) and expanded in 2(2)(a), as the Labour spokesman said. However, regulation 2(2)(a) is a limited expansion and the definition is also very limited. If we went out into the streets of London on this damp and dismal evening and asked people what they understood by the term "relates to the environment" the reply would be not so limited as the list in regulation 2(2)(a).
Regulation 3 is entitled, "Obligation to make environmental information available", and covers the arrangements for replying to any response. There is also a problem with the test which is set out because it is deemed a failure only if there is no response after two months. As we know from parliamentary answers, a response can be anything and nothing—it can be helpful or unhelpful, minimalist or maximalist. It is inadequate to define a failure only as not having a request responded to at all after more than two months. I am sure that this will prove a loophole. People will be able to say that they have responded, but the response may often be nothing worth.
Regulation 3(3) provides another let-out. When I worked in the secretariat for human rights at the Council of Europe in Strasbourg, we had to apply tests which 517 debarred applicants from getting their case before the Commission, let alone the court. One of the tests was whether the issue was too general and not specific enough. We are creating a problem here by building in a threshold which states that a request for information can be refused when the requestis manifestly unreasonable or is formulated in too general a manner.We, the public, may not know exactly what information is held. That is half the battle, because the information is held by the person whom we seek to challenge. Therefore, it is no good to be told, "Sorry, you are being too general—what exactly do you want?" when one does not know what information is held.
There is also a problem with charges, which are covered in the following paragraph. There is a qualification of the test for the charges, nevertheless the charges should be no greater than the cost to the provider of providing information to the person who asks. It is unreasonable to levy charges other than the cost of reproducing a copy and the cost of personnel time for information that is held. That is a weakness, because the regulation goes no further.
The hon. Members for Monmouth and for Islington, South and Finsbury and I would probably put at the top of our list of concerns the exceptions in regulation 4. The most general criticism is that regulation 4 has been chosen by the Government as a mechanism for including more and wider exceptions than were required by the directive or by good environmental practice.
I expect that colleagues will have seen the report published in November this year in the journal of Environmental Data Services Ltd., but it is worth bringing it to the House's attention. Page 35 states:
Obstructing in Whitehall seems set to restrict the impact of the 1990 EC directive on public access to environmental information, which is due to be brought into force at the end of the year. An official from the Department of the Environment … has revealed that other Departments are likely to block requests for not only their own information but for industrial data claimed to be commercially confidential.I have not made inquiries to see whether that official is in the Box tonight and I do not mean to embarrass him if he is. He is nonetheless quoted in the article, so I shall quote him now.
The article continues:a DoE official, Dick Baxter, at a conference on international chemicals control in Novembersaid that whereas his Department was quite positive, other Departments were certainly less so. He noted that the exemptions were quite wide and that other Departments had told his Department that they would probably be able to find some means of not disclosing. Mr. Baxter said:If their culture is agin, I believe they can find a hook to hang it on.That is not very encouraging. Even if the Department of the Environment is being good, all the other Departments may not be good.
The article continues:Mr. Baxter revealed that several Departments are insisting that if industry insists that information is commercially confidential, that would be sufficient reason not to disclose it. It will be open to Departments to ask companies to reconsider, he said, 'but some might not wish to challenge it, others may.?In summing up the situation in which people would be left, Mr. Baxter concluded:
The directive's success … is … likely to depend on people being willing to go to court. Groups such as Friends of 518 the Earth and the Freedom of Information Campaign have the resources to do so, and 'if I were in their shoes, I would go straight to the European Court of Justice.?In the past few years, I have occasionally been to conferences where I have heard officials say interesting things—not only officials from the Department of the Environment. I remember a Department of Energy official saying that it was quite possible for Britain to do without the nuclear component for energy supply if we wanted to, provided that we had energy efficiency and energy conservation measures that worked.
If Mr. Baxter is right—he seems to know what he is talking about—we have substantial cause for concern. Departments can be obstructive and companies in the private sector can be obstructive. The regulations will rely on people going to court, which should not be the case. We should not make people go round a great obstacle course —we should be opening the doors wide so that people can go straight through.
The exception clause is therefore a great problem. Although we could argue that it is the normal legal text, the phrase in regulation 4(1)(a)—Nothing in these Regulations shall … require the disclosure of any information which is capable of being treated as confidentialis far too wide. The other half of the regulation says:
or authorise or require the disclosure of any information which must be so treated.The specific and obvious example of where the regulations are drawn in a way that is far too wide—I do not intend to elaborate on the well-made points about international negotiations which relate to regulaton 4(2)(a)—regulation is 4(2)(b). The regulation says:
For the purpose of these Regulations information is to be capable of being treated as confidential if, and only if, it is … information relating to, or to anything which is or has been the subject-matter of, any legal or other proceedings (whether actual or prospective)".It is a ridiculous proposition that one will allow an exemption—the hon. Member for Monmouth went down this road too—for anything that has ever been the subject of any sort of legal proceedings, no matter how widely defined. Once the case is over, whether traditional legal battle, public inquiry or any of the other proceedings set out in 4(5), under the British system, information should be open and available. There is no excuse at all for such documents to be exempt and it is completely unjustified.
Many issues are the subject of public inquiries. Examples are whether Sizewell B should be built, whether THORP—the thermal oxide reproducing plant—should be brought into operation, whether the M3 bypass should go across Twyford down and whether there should be an east London river crossing at Oxleas wood. All those are the subject of public debate, possible legal cases or applications for judicial review. All that should be in the open. It is disgraceful that we are seeking to grant that exemption, particularly as the directive, as I understand it, does not require it. It provides an opportunity, but not a requirement. The Government are being traditionally defensive on the subject. I do not know whether it is the Department of the Environment or other Departments which have urged the Government to be so.
The list of confidential information on the following page also allows room for ambiguity and prevarication. It states:information relating to the confidential deliberations"—
§ Mr. Mike O'Brien (Warwickshire, North)
At the end of regulation 4(2)(b) there is reference to 519any legal or other proceedings (whether actual or prospective)".The word "prospective" makes the condition so expansive that anyone seeking to restrict any information, according to the regulations, need only say that they intend to consider taking legal proceedings and they will not have to reveal the information.
§ Mr. Hughes
I am grateful to the hon. Gentleman. He is absolutely right. I was so carried away with my earlier point that I forgot to deal with that. It would be as if we, in this place, were told that matters could not be raised because they were sub judice simply because they might be the subject of legal action at some future date. That would allow anything to be exempted. If there were controversial proposals for orimulsion and it was reported in a newspaper that a campaign group would take legal action if BP went ahead, the regulations would threaten us if we revealed the information.
The regulations also refer toinformation relating to the confidential deliberations of any relevant person".That contains a hidden question relating to the relevant person—who could be a local councillor, or a member of a Government Department or a quango—and whether specific parts of their deliberations should be confidential.
Regulation 4(2)(d) could allow for real skulduggery. It refers toinformation contained in a document or other record which is still in the course of completion".We all know how hon. Members occasionally chance upon documents. If we wave our spoils about and say that we have found a secret document belonging to another party, the defence used is normally that what we have is not the final document, but only a draft. It is very difficult to know when a document has been completed, and it is always a defence to say that it has not. The regulations we are debating tonight are not complete—they are only draft regulations. We do not know whether it is a completed document or not. Would it be completed if it had been shown to one person in the Department, or to one person and an expert outside the Department, or to 25 people? The regulation provides a minefield of excuses.
Regulation 4(2)(e) refers toinformation relating to matters to which any commercial industrial confidentiality attaches or affecting any intellectual property".Public interest should override commercial confidentiality. It is not good enough for a private sector company or a nationalised company, or a company such as PowerGen, which is an in-between company, to say that the matter is commercially confidential. That assertion must be tested. We know that, if the matter is taken to court, a plea can be entered stating that the information is commercially confidential and the matter will not be aired.
There should be a public interest test. Environmental information is no good if it is available only from the public sector. People living in Pontypool need to know what ReChem is doing, and people living just outside Presteigne or Kington near the borders of Powys need to know what the local garage is doing burning tyres—
§ Mr. Hughes
The hon. Gentleman refers to Coalite. There are loads of issues, and they include opencast 520 mining, the Bolsover farmers and the allegations about the pollution of milk. It is no good allowing the private sector merely to say, "This is a confidential matter."
The next part of the regulations elaborates on what "confidential" means. It really is not good enough to define "confidential" in such a way as effectively to allow pleas of confidentiality always to win the day. That is the danger of the regulations: although they open a door, someone the other side of that door who wants to close it can do so by saying that commercial confidentiality is at stake.
The problem is that the directive allows Governments to be far too restrictive. It would have been better had there been a standard way of providing information, but that opportunity has gone. It would also have been better if the Government had not availed themselves of the right to exempt unfinished documents or data. That blanket restriction is not necessary and should not have been included.
Finally, as the official from the Department of the Environment said, we should not have regulations which need constantly to be tested in court. Like many other hon. Members, I trained as a lawyer, but I believe that the test of good legislation, particularly freedom of information legislation, is not the amount of work that it gives to lawyers but the extent to which it allows the public access to information without having to have recourse to lawyers —in other words, how easy it is for the public to get the information that they require.
I hope that we shall review the workings of the legislation in the light of experience, before the end of next year, and yearly thereafter. As far as they go, the regulations are welcome, but they do not prove that the Government are yet converted either to the cause of environmental openness or to real freedom of information. To some of us, that comes as no surprise; even so, we had hoped that, after all this time, this very necessary open door might have been opened slightly wider tonight.
§ Mr. John Denham (Southampton, Itchen)
Let me take the opportunity to make some comments about the relationship that surely exists between the availability of environmental information and public confidence in the way in which the Government and other bodies handle environmental issues. It seems to me self-evident that, even if the Government took all the correct action, full public confidence in their actions would be unlikely to be forthcoming unless sufficient environmental information was available to members of the public.
I hope that the Minister will be able to tell me whether the regulations would assist the public on two specific issues. If the answer is no, the regulations are deficient. If the answer is yes, they may be helpful. The first issue concerns the import of toxic waste into the United Kingdom from developed countries, to which my hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) has already referred.
For several months, hon. Members, including me, have been engaged in a fruitless correspondence with Ministers and in exchanges at oral questions on this issue. We have regularly been told that the Government have negotiated the power to limit the import of toxic waste. We have not yet extracted a simple pledge that the import of toxic waste from developed countries will be stopped. That is a matter 521 of considerable local concern in Southampton, both because thousands of tonnes of toxic waste from developed countries are imported through the docks and travel our roads and railways and because there is a ReChem incinerator plant on the waterside.
The fact that ReChem was recently successfully prosecuted for exceeding discharge limits has done nothing to reassure local people about the operation of the plant. Having listened to the debate, and given ReChem's tendency to find itself in court over these matters, I wonder to what extent the regulations will help local people to obtain the information that they need about the ReChem plant's operations. Will the regulations make it easier to get an idea of what the Government intend to do about importing toxic waste from developed countries?
Secondly, I am concerned about the ability of the regulations to reduce the conflict surrounding projects with major environmental implications. Every hon. Member will be aware that the construction of the M3 through Twyford down is one of the most controversial and environmentally damaging projects under way in the United Kingdom. The scheme has been bitterly opposed by many people, both locally and nationally. Within the past week the conflict has degenerated into violence and thuggery against protesters on Twyford down.
The inadequacy of the environmental impact assessment of the scheme, and of assessment of the benefits of alternative schemes, has been one of the consistent themes behind opposition to cutting a major road through the down. The absence of good assessment and decent information has disillusioned environmentalists throughout the United Kingdom, and has been a source of dispute with the European Commission.
Having listened to the debate, and recognising how much of the information has been subject to local inquiries, I wonder whether the regulations would enable better environmental information to be made available to the public. It is certainly true that the deep and widespread belief that the environmental consequences of the M3 cutting have been ignored has directly fuelled continuing protests against the motorway in recent months. They also fuelled the violent scene on the down last week.
I have spoken to reputable witnesses, and it has been widely reported in the press that the peaceful protesters on Twyford down were subjected to unprecedented violence by the employees of private security firms—violence that took place under the eyes of the police.
§ Mr. Deputy Speaker (Mr. Michael Morris)
Order. That is not covered in the regulations. The hon. Gentleman is right to raise queries on what is contained in the regulations, but it is not in order for him to go into detail about local issues.
§ Mr. Denham
I accept your ruling, Mr. Deputy Speaker. I wished to make it clear that, if environmental information is not made available to the public in an acceptable and usable form, it contributes to a breakdown in public confidence in the planning process and in Government actions, which triggers a chain of events. At Twyford down, that led to peaceful protests and a response by private security firms and—I am told—by the police, which I find utterly unacceptable.
The House must face up to the question whether the regulations will give the public sufficient confidence in the planning processes for projects such as the M3 and 522 whether they will lead to a consensus that the Government are acting properly. If the regulations contribute to that, they are helpful. If they fail to lead to that consensus, they are not.
People who have studied the regulations in detail have mentioned exclusions on the grounds of confidentiality, on the grounds that projects are subject to public inquiries —as are motorways—and on the grounds that they are subject to international law, which presumably refers to the European Community challenge as to whether the M3 scheme has been planned properly.
The regulations will not restore public confidence. If it is not restored, protests of the sort that I described will take place. Young people with what some may view as eccentric or unusual life styles are Thatcher's children. They have never known a Government with values different from the materialistic and anti-environmentalist attitudes of this Government. That is why they became involved in the protest. If the Government wish to restore widespread confidence in their planning processes, good environmental information must be made available.
I am grateful to you, Mr. Deputy Speaker, for your tolerance. I accept that I have stretched the debate a little beyond the narrow legalistic terms of the regulations, but it is important to note that the sort of conflicts that have been witnessed recently stem from a breakdown of public confidence in the planning process. Therefore, the regulations are not dry legalistic matters, but relate to the way in which the Government and our society conduct their affairs without conflict and by consensus.
§ Mr. Mike O'Brien (Warwickshire, North)
We are better off with the regulations than without them, but they do not go far enough. They could have been so much more and so much better.
Access to information on the environment is fundamentally important to environmental groups such as Friends of the Earth and Greenpeace, to individuals who have an interest in environmental protection and to legislators. It is also essential to business and industry, and the regulations fail to address the needs of business and industry.
There is in the regulations an assumption that confidentiality is important to business. It is a bureaucrat's assumption. Access to a free market in information on the environment is important to business. The regulations allow too many bureaucrats to put too many obstructions in the way of people seeking information to which they should have a right.
The taxpayer will often have paid, through grants or contracts, for information to be collated and, in principle, access should be denied only in rare cases. The opportunities that the regulations provide for bureaucratic obstruction are legion. For example, regulation 4(2)(d) allows unfinished data or information to be kept confidential. That is much too broad. Organisations could unreasonably withhold information on the excuse that it forms part of a larger and still incomplete study. That may allow important information to be withheld almost indefinitely.
Regulation 4(2)(e) allows information to be restricted if it relates to commercial or industrial information or affects any intellectual property.
523 There is a nice restrictive definition of what relates to the environment in regulation 2(2)(a), but when we come later to the nature of information relating to commercial or industrial information, it is left open. It simply refers to "information relating to". It does not have to be the actual confidential information itself. Any information which relates to any other information which may be confidential can also be excluded. Again, that is much too broad an exclusion.
Yes, there is a legitimate area of business and product secrecy. Businesses will want to protect some of their processes. But business also has a right to know. I am looking here just at the way in which business would view the matter. A free market in industrial and commercial information is to be encouraged to enable all companies to take advantage of best practice and to ensure that they protect the environment. Regulation 4(2)(e) gives licence to bureaucratic secrecy and it encourages the wrong thing in terms of the needs of business.
In addition, that regulation is either badly worded or it simply says that there is a right to exclude information relating to any intellectual property. That is a definition with a real blunderbuss approach to the law. Business needs an open market to information, and as open a market as possible, to ensure that it can influence legislation to be able to seize the initiative in a new green market for products and to ensure that, unknown to itself, it is not polluting. For example, if data show that a business is polluting in a way previously not known, it is important that that information should be readily available.
Towards the end of the 1990s and into the 21st century, business will move into a much greener market. Whether from Europe or domestically, there are likely to be more laws to protect the environment, perhaps new taxes and new customer requirements. All that must be planned for and anticipated, and new investment programmes have to be framed, within the context of knowledge about the environment. If some of that important knowledge is not available to business because the bureaucrats who hold it are able to use the clauses to restrict it, business will not be able to be involved in the early stages of deciding what sort of environmental regulations are required.
In Germany and other EC countries, the large companies have lobbyists who are always ready to become involved at an early stage in framing legislation to regulate the European economy. All too often, German businesses can become involved at the beginning in framing Euro-regulations in a way that will benefit them. That is because they have access to information supplied by the Government. Under the regulations, such Government support may well be denied to industry in this country. Business in Britain is not encouraged to become involved at an early stage in framing regulations. There is an unwillingness to allow information to be made available to British companies. The Government should encourage business to become involved.
I am lucky enough to have in my constituency a 3M factory at Atherstone. That company has a very good attitude towards the environment. It wants to be involved and to have as much information as possible about its processes and the products that it will provide for customers in the green market of the future. That company 524 needs access to as much information as it can get, because it has to make long-term commercial decisions about the sort of future market in which it will operate. The regulations do not address the needs of that business or of other businesses which should be encouraged to deal with regulations at an early stage. Access to information that can be used to frame arguments in the EC and in Whitehall is essential. If local authorities or the Government hold back on such information, it could have a long-term impact on jobs.
Out there is a large, new green market which is estimated to be worth £50 billion. Many consumers are interested in buying products with a green tinge, products that are environmentally sound. They want to buy from companies in which they can have faith, and those companies must be able to demonstrate integrity. In order to be in that green market, businesses must invest. Their products in which they have invested so much may have been subjected to research, the data on which are controlled by the Government or by local authorities and not revealed. As a result of the regulations, bureaucrats will be able to withhold that information, and those British companies will not be able to take full advantage of a market in which they might well have been the leaders.
I say again that the regulations do not respond to the needs of business. Companies must be able to anticipate the changes in environmental legislation. Governments may well legislate on the basis of information that is available to them and which they will not divulge. Therefore, businesses do not know about it and cannot make essential plans. This bureaucrats charter will prevent information being revealed about the environment. The Government pride themselves on being pro-business, but the regulations have a narrow view about what is good for business. They should be about open information that will help citizens and business. Instead, it is about how to create conditions for restricting information. It is a failed opportunity.
In some ways, inherent in the regulations is a restriction on information that might be available in other EC countries. That could damage British industry and British jobs in the long term. It is time that the Government reconsidered the needs of business in access to information. They should realise that a free market in information on the environment is now essential. Business is moving into a different market position, and it must have access to information. The regulations do not provide it with that access, so they should be reconsidered. As has already been said, they will result only in more lawyers earning more money from more litigation in an attempt to get greater access to information. That is not the way to approach these matters.
When I mentioned information being available in other EC countries, the Minister shook his head—obviously suggesting that it would not be available. He kids himself. The contact of many other countries with their business communities in providing information is much more open, direct and valuable than the Government's attitude to our businesses. That is evident from the regulations.
§ Mr. Simon Hughes
I hope that the Minister will respond to the hon. Gentleman's valid points—and, indeed, to the valid points raised by other hon. Members. It appears that there is concern within the Department —for example, the quote from the official—and it is clear that other Departments have put pressure on the 525 Department of the Environment. It may be that it is those other Departments that do not understand the benefits of more open access for the commercial world. It would be interesting if the Minister specifically answered the question about where the pressure to restrict information has come from—his Department or elsewhere. If we knew that, we would know where to apply pressure in the months ahead.
§ Mr. O'Brien
I agree with the hon. Gentleman that it would be useful if the Minister identified the culprits. They are prepared to put not only the environment at risk, but many businesses that want both to protect the environment and to take advantage of the big green pay-off that will be available if they manage to get a lead in the green market of the future. If there are culprits among Ministers and bureaucrats in Whitehall, the House and the public have a right to know the identity of those enemies of the environment. They may not be the Minister and his Department, but we must know who they are.
§ Mr. Dennis Skinner (Bolsover)
One thing is certain: during the time that I have been a Member of Parliament there has been a huge change in people's perception of the environment. That is no better demonstrated than in my constituency, where there were 15 or 16 pits when I first became a Member of the House. Now there are only four, and if the Government have their way there will be none in north Derbyshire in a few weeks. I hope that the great public show of determination during recent weeks will persuade the Government to think again.
Because of that change in people's perception, many more of our constituents are now aware of their rights and powers in environmental protection which hitherto they would not have thought to use. It used to be argued that, if a Member of Parliament had a middle-class constituency and loads of suburbia-land, he had a great number of complaints about the environment. My experience in Bolsover over recent years with the Coalite issue has been staggering. Many of those directly connected with the firm and many who work in the pits have wanted to exercise over and over their right to express an opinion on the environment.
That is why, when I listened to my hon. Friends and others discussing the regulations, I was drawn to the conclusion that the Government were simply seeking the least common denominator among the regulations. They have obviously said, "How can we best use the regulations without giving too much away? How can we protect our business friends who pay large sums of money to the Tory party at election time?"—as opposed to the business people my hon. Friend the Member for Warwickshire, North (Mr. O'Brien) referred to. My guess is that that is what motivates Tory Members in everything that they do. If they add a little flavour and try to attack trade unionism at the same time, it adds grist to the mill. That is the angle from which the Tories approach such matters. The previous Prime Minister used to ask whose side people were on before they were appointed.
The regulations would help companies such as Coalite Management in my constituency. Coalite has got by pretty nicely as a result of the Tory Government. In the past 18 months, it has put three farmers out of business, and made the population of Bolsover and Shuttlewood live in fear.
526 The Government have now come along with regulations that will fortify such firms, which do not want to let people into their secrets.
In the Evening Standard the other day I spotted the fact that Coalite's shares had fallen to 6.5p. I also find that the National Farmers Union is belatedly suing Coalite for compensation for the three farmers who have been out of business for some 18 months.
I then hear that a planted question was tabled by a Derbyshire Tory Member today, asking about dioxins in my constituency. That hon. Member has never raised the matter before and I am bound to conclude that some fishy business is going on. When I saw the regulations, it all added up: the Government are operating on the basis of tightening the regulations to their benefit in the finest possible way while at the same time giving the green light to a beleaguered company called Coalite by saying that certain things involving farmers can now take place. From what I hear from the farmers, that can only benefit the firm. The Minister knows a little about that subject, as he used to be in the Ministry of Agriculture, Fisheries and Food.
Why have the Government found it necessary to have that question planted and stage this reply about the matters affecting Coalite? Why, under the regulations, do the Government always favour their friends?
Were it not Christmas, with many hon. Members already gone, we should have voted against the regulations.
§ Mr. Skinner
I am searching for a teller, because one Member cannot divide on his own. I am toying with the idea at present. Some of my hon. Friends have said that half a loaf is better than no bread at all. Perhaps we shall sustain that argument for tonight.
Why do the Government feel it necessary to give Coalite the green light when it is in trouble, with its shares having plummeted, the National Farmers Union suing it, and the National Rivers Authority having taken out a case against it for river pollution? Why cannot the Government just sit idly by? Why do they feel the need to rescue the company's directors?
The regulations will not make it easier for people who are protesting against Coalite and the thousands of people who have signed a petition to stop an incinerator at Coalite. Is it possible, under the regulations, for the people who do not want the new incinerator to seek redress from the Government? Do they help them? What I have heard from my hon. Friends makes it sound as if they do not. It sounds as though they will not give them any assistance, and I thought that the regulations were to help people not only to be informed about environmental protection, but to protest against what they see in their locality. From what I gather, they will not be able to do anything of the kind.
The Minister is well informed on this subject, so I hope that he will answer in the affirmative and make it clear that, as a result of the regulations, the people in Bolsover who are protesting against the new incinerator to be built by Coalite will stand a chance of stopping it.
§ Mr. Maclean
I shall respond first to the hon. Member for Bolsover (Mr. Skinner). As usual, I admire the way that he can walk into the Chamber reasonably near the end of our debate and pick up the thread of the argument and still make his local case on behalf of his constituents—in this instance over the dioxin and Coalite case. He will be aware from his reading of the regulations, which implement an EC directive—it is intriguing that he does not, at the moment, intend to vote against them—and from my opening remarks that his constituents will have considerable new rights to obtain information from the relevant bodies and organisations. He will be able to decide, from the careful consideration that he will have given my opening remarks—wherever he may have heard them—whether Coalite would consider itself a relevant body to give information.
I cannot comment on what was presumably a written question, which may have been answered by another Department. The hon. Gentleman will be pleased to know that, when the question was answered, I was still in Brussels negotiating for his constituents even more rights over access to information. It must be a matter for him to decide, on his reading of the regulations, whether they are of as much help to his constituents as I believe they are.
§ Mr. Chris Smith
The Minister entirely misses the point. The question is not whether Coalite is a relevant body, because clearly it is, but whether Coalite will take refuge in the commercial confidentiality clauses in the regulations to claim that information that is material to the constituents of my hon. Friend the Member for Bolsover (Mr. Skinner) is commercially confidential. That is the loophole that it will use.
§ Mr. Maclean
It is clear that relevant bodies are under a duty to provide information, but that there are certain exceptions to that, although each case must be decided on its merits. If the bodies fail to provide information, those who wish access to it have the right of redress.
I have one point to make about public bodies and Departments in relation to the hon. Gentleman's constituency. In my time in the Ministry—if anything, that trend will have strengthened over the past few months—it has made available all relevant information which it had on the dioxin incident, commissioned research and made available as much of the resulting information as possible. I should not speculate at the Dispatch Box, but I suspect that the National Farmers Union has only now been able to take legal action because of the Government's information, which the research came up with, which was published and which the hon. Gentleman's constituents are able to make use of. If they are to take action, I shall not comment further on the case because I should not want to prejudice it.
The hon. Member for Southwark and Bermondsey (Mr. Hughes) came along with a long wish list of what he would ideally like in terms of freedom of information law. He seems to have forgotten that the Chancellor of the Duchy of Lancaster is committed—the Prime Minister has committed the whole Government—to reviewing Government information access. A paper will be published in the new year dealing with the wider question of access to all Government information.
The hon. Gentleman's wish list is simply not relevant when we are faithfully trying to implement an EC directive 528 such as this. I suspect that his party's view is that we should always faithfully implement EC directives; if we depart from that and come up with something different that would bring us into the European Court in no time at all, and presumably he would not be pleased.
The hon. Gentleman asked whether we would review progress on legislation. My hon. Friend the Member for Monmouth (Mr. Evans) in a splendid intervention—adding to his brilliant speech—reminded us that we are under a duty to report on progress within four years—
§ Mr. Maclean
In many circumstances, I would be happy to hand it over, especially when answering technical or legal debates such as this one.
In Brussels this morning we reached agreement on a unique British initiative on reporting and reviewing legislation. All Ministers of the Environment Council were unanimous on this. The EC is good at churning out information; it has not been particularly good at reviewing legislation or monitoring its progress. At our instigation, the Commission produced a paper that received unanimous approval. In future Environment Councils—I hope that the practice will spread to all others as well—we will find time every year to review existing legislation, to report on progress and to amend legislation where necessary.
§ Mr. Simon Hughes
I remember that the Government set that as one of their objectives for the presidency. It is wholly commendable. The Minister said that I was inconsistent in arguing for the implementation of the directive at the same time as arguing for the widest possible freedom of information. There is no inconsistency in that. As he well knows, the directive would have allowed the Government to do more than they did, but they refused to use that leeway to the full. They have implemented the document too narrowly—that is the criticism.
§ Mr. Maclean
I reject that, but I accept the hon. Gentleman's point that this was one of our presidential objectives. I have today answered a written question setting out our achievements over the past 48 hours in Brussels. The achievement of this objective was only one of many. They include the drastic tightening up of the Copenhagen agreement on chlorofluorocarbons and ozone. We shall return to look at hydrochlorofluorocarbons and methyl bromide in the new year—another British aim. This morning we unanimously agreed the fifth action programme. We have drastically tightened up on van emissions; and we have given a full agenda to Denmark to go on with, even though we inherited a rather lighter agenda. I hope the the whole House will read that written answer. It has been a spectacular triumph, and I congratulate my right hon. and learned Friend the Secretary of State on it. We like to have our little triumphs to add to the Edinburgh triumph.
The hon. Member for Southwark and Bermondsey asked me about Northern Ireland. He knows that separate legislative procedures operate for Northern Ireland, and it will be up to the Northern Ireland office to implement the regulations as soon as possible.
The hon. Gentleman asked what will happen if someone who has approached a relevant body for information gets an inadequate response. The inquirer has a right of redress if he or she feels that the response has 529 been inadequate. The hon. Gentleman also said that often inquirers might not have a clue what information they wanted. I would say: tough luck. An inquirer should not be able to ask for all the information that a body has and then fish through it to see whether anything hits the fan. He must be more specific than that.
The hon. Gentleman made great play of what he saw as an obstruction in Whitehall. If there were any truth in that, I would not tonight be urging the House to agree to regulations that apply to all Government Departments.
We have got agreement across Whitehall. We would not have been able to reach agreement two years ago unless we had such agreement. The hon. Gentleman shows his complete lack of knowledge of how government works. Before we go to any European Council and agree legislation, all Departments must, of course, be in agreement; otherwise, we would not sign up to any legislation. We reach such agreement automatically, as a matter of course. Whitehall was in agreement two years ago when we agreed the directive under the Irish presidency. We were in agreement when we produced the regulations. There is no obstacle course.
§ Mr. Maclean
No, I will not give way. It is pointless.
The hon. Member for Southampton, Itchen (Mr. Denham) asked whether individual constituency cases will be covered by the regulations. All I can say is that they give the public many more rights to acquire environmental information from many public and relevant bodies. There is one point on which I must take issue with him. He must not inadvertently mislead the House on the subject of toxic waste by saying that we have not announced our policy. I made our policy abundantly plain in Question Time two weeks ago. We had yet another success at the meeting of European Environment Ministers this morning, when we managed to get agreement on how we would implement the Basle convention on the trans-frontier movement of toxic waste.
We have made our policy clear. We fought hard to include the self-sufficiency principle in the regulations on the trans-frontier movement of shipments of waste. We fought hard for it and we got it. That will allow us to draw up national plans, which we are starting on now, in readiness for when the EC regulations take effect. Ratification of the Basle convention is a matter for the Community—we cannot ratify it unilaterally, because that would be illegal. Once that convention is ratified and the regulations take effect in 1994, we intend to have our national plans in place. They will allow us to turn off the tap on the importation of toxic waste from major developed countries.
§ Mr. Denham
The Minister has just said, as he has on a number of occasions, that the regulations will allow our Government to turn off the tap on toxic waste imports. That is not in dispute. However, we have not heard yet from the Minister that the Government will use that power to turn off the tap. I will be entirely satisfied if the Minister can give a pledge that toxic waste imports from developed countries will stop.
§ Mr. Maclean
I have made that pledge before. The only reason that we argued for that power to be included in the regulations was to use it, not to leave it on the shelf. I am drawing up plans to take advantage of, use and implement 530 the regulations so that I can turn off that tap. It is not a question of just having the power to do that, otherwise there would be no point in agreeing to the regulations.
§ Mr. Maclean
Please check back in Hansard.
The hon. Member for Warwickshire, North (Mr. O'Brien) claimed that bureaucratic obstruction would somehow destroy the ability of British industry to seize the green initiative. That is absolute nonsense. He was unable to cite one instance where the regulations that we were putting through tonight depart from the directive by one jot or tittle. We are implementing an EC directive, and it also happens to be British Government policy.
The hon. Gentleman was unduly pessimistic about the way in which British industry will react to the initiative. In the past few months, I have addressed a number of seminars of representatives of British industry on matters such as eco-audit, eco-labelling, and the follow-up to the Earth summit at Rio. The message has got through to British industry that the environment and environmental equipment, techniques and technology represent mega bucks in the future.
If industries want customers, staff to work for them, their shareholders to be happy, insurance companies to insure them and the banks to lend them money, they better be clean and green in the future. They should develop such products. That is why an unprecedented number of industries are applying for information on the new British standard, BS 7750. That is a positive sign.
The hon. Gentleman also said that many individuals would want to know whether the products from certain companies are environmentally friendly. We are keen, of course, on eco-labelling, and it is a pity that there have been some problems in the EC in getting some of the rules and systems for that labelling up and running. We have clearly said that, unless things move much more quickly, we reserve the right to take our own action—although I do not want to do that; I want to stick with an EC-wide regulation.
This morning, we nearly secured agreement on the eco-audit scheme. Under the scheme, all EC companies that show that they have environmentally friendly policies will satisfy the requirements of the legislation. We encountered severe difficulties last night: seven major objections were advanced by other countries. None the less, my right hon. and learned Friend the Secretary of State for the Environment persuaded all those countries to withdraw their objections—with the exception of Germany, which maintained a general reserve. I hope that we shall secure agreement early in the new year. To get the whole eco-audit regulation up and running would be a tremendous achievement, and I hope that Germany will appreciate the wishes of the other 11 countries.
The hon. Member for Islington, South and Finsbury (Mr. Smith) came up with what seemed to be a strong list of objections. He presented seven points of substance which, he seemed to think, proved that the regulations were inadequate, or that we were not implementing the directive in some respect. To be fair, he began by saying that, generally speaking, the regulations were very good, and that we had made considerable progress.
A casual observer would probably have concluded that there was something in the hon. Gentleman's seven points 531 —until, that is, my hon. Friend the Member for Monmouth demolished every one of them. I pay tribute to my hon. Friend: I have never seen a more competent demolition job applied to an Opposition spokesman's argument. All seven points were proved to be spurious, and my hon. Friend demonstrated that we had faithfully implemented the directive without departing from it.
§ Mr. Chris Smith
Will the Minister address himself to the one point with which the hon. Member for Monmouth (Mr. Evans) agreed—the inclusion in the regulations of a provision limiting access to information on matters relating to public and local inquiries?
§ Mr. Maclean
I shall come to that in a moment.
Let me deal with another aspect of the hon. Gentleman's speech, which I consider very important. I had always considered the hon. Gentleman to be fair—slightly misguided, perhaps, but fair. Tonight, however, he was very unfair when he inadvertently gave the House a misleading impression of the terms of a written answer that I gave. Let me place on record exactly what I said.
The hon. Gentleman seemed to imply that I had given a duplicitous reply to a question about the waste shipments regulation. He seemed to suggest that I had said that we would implement it and ensure that we had national plans, having said in an answer six days earlier that there would be no changes to existing UK law and practice. In fact, I answered two questions together. I was asked what steps I intended to taketo implement the EC regulations agreed on the supervision and control of shipments of toxic waste; and when he will publish the regulations".I was also asked whether I would make it my policy, in implementing the proposals,
to ensure that toxic waste is disposed of as close as possible to its source within the United Kingdom and that no waste is imported for commercial gain.In answer to the first question, I said:The regulation will be published in the Official Journal after adoption by the Council and is likely to apply 15 months after publication. We shall be giving careful consideration to the application of the regulation's provisions in relation to imports for final disposal.In answer to the second question, I said:
We expect no change as a result of the regulation to existing practice within the United Kingdom."—[Official Report, 3 December 1992; Vol. 215, c. 289.]In view of my assurances now and at the last Question Time that we are keen to implement the regulation on toxic waste imports and to ratify the Basle convention, and that I shall draw up national self-sufficiency plans which will allow me, for want of a better phrase, to turn off the tap of toxic waste, will the hon. Gentleman accept my assurances and that he has misled himself about the interpretation of my answer? Will he kindly say that my explanation is correct?
§ Mr. Chris Smith
I am happy to accept the Minister's explanation, but the distinction that he draws between the two parts of his answer is not specified and it is not clear from the answer as it stands on the printed page. He has, however, admirably clarified what he meant, and tonight he has given us for the first time a clear assurance that the Government intend to stop the importation of toxic waste 532 from other developed countries. That is an extremely welcome assurance. We have been demanding it for months and we are glad to hear it from the Minister.
§ Mr. Maclean
I accept the hon. Gentleman's explanation. It was obvious from the answer that I was answering two separate questions: it is slightly disingenuous of the hon. Gentleman to suggest otherwise. There is no need for me to repeat what I said about toxic waste. We shall take advantage of all the provisions in the regulations that will allow us to make national plans as far as the EC regulations allow us to go in turning off the tap of toxic waste from developed countries.
The hon. Member for Islington, South and Finsbury and my hon. Friend the Member for Monmouth asked about local inquiries. The discretion to withhold the information in regulation 4(2)(b) will be exercised in a few cases where such information is not automatically available—for example, where it may be withdrawn from the record or background documents and advice. I accept that this is a complex issue. I am happy to write to my hon. Friend and to discuss it with him.
We have had quite a good debate. I am sorry that some Opposition Members, while saying that they support the regulations and their party's policy on the EC and are keen to implement EC regulations, were then so carping about the fact that we have faithfully implemented the regulations I did not hear a single comment from an Opposition Member to suggest that we have failed in any way to implement the provisions of the directive.
§ Mr. Maclean
No, I will not. The hon. Gentleman made a long speech, and I must wind up.
It would be foolish in the extreme for us to introduce regulations that we did not believe implemented an EC regulation, because we know full well that that would land us in the European Court of Justice. We consulted widely on the regulations and prepared them carefully. They provide new rights of access to environmental information to 56 million people in this country. I commend them to the House.
§ Question put and agreed to.
That the draft Environmental Information Regulations 1992, which were laid before this House on 8th December, be approved.
§ Mr. Simon Hughes
On a point of order, Madam Speaker. Will you confirm that, procedurally, nothing would have prevented the Government from laying before the House the Northern Ireland regulations—the missing part of the jigsaw of the regulations that we have just debated—after the last debate and before the two orders that you are about to put to the House? Could that have been done, because if it could people should realise that the Government chose not to do so?