Post-Brexit secrecy could limit information rights, warns watchdog

Scotland’s information watchdog has urged MSPs to rethink secrecy rules being proposed for a new post-Brexit environmental body.

The Scottish Information Commissioner, Daren Fitzhenry, has warned that a European Union (EU) withdrawal bill currently being considered at Holyrood could prevent the release of information by Environmental Standards Scotland (ESS).

ESS is due to be set up in 2021 by the Scottish Government to replace the EU’s role of ensuring that public authorities in Scotland comply with environmental law – and that the law is effective.

But campaigners have branded confidentiality clauses in the bill as “alarming”, arguing they could block access to vital information about public health, climate change and pollution.

Now Fitzhenry has intervened by raising concerns about the clauses with MSPs on the Scottish Parliament’s environment committee, which is due to consider the bill.

In a submission published online he pointed out that section 36 of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill “appears to introduce prohibitions on the disclosure of information”.

He said: “Those prohibitions, if enacted, will prevent non-environmental information being disclosed in response to a request under the Freedom of Information (Scotland) Act 2002.

“No doubt the committee will come to a view on the appropriateness of such a restriction on the right to freedom of information being imposed. As the committee might expect, I would ask that very careful consideration be given as to whether it considers such a restriction to be justified.”

Fitzhenry argued that the impact of the confidentiality clauses on the publication of environmental information was “more complex”. This was because they could sometimes be overruled by Scotland’s existing environmental information regulations.

“I am of the view that it would still be within the power of the commissioner to order disclosure of environmental information in some circumstances,” he said. He stressed that the environmental information regulations had introduced “a presumption in favour of disclosure of environmental information.”

Fitzhenry concluded by asking MSPs to consider how section 36 of the bill will work in practice and whether “any amendment should be made”.

Ministers trying to ‘thwart publication of information’

The Campaign for Freedom of Information in Scotland argued that the environmental information regulations rendered section 36 of the EU withdrawal bill “entirely unnecessary”. It was wrong to try and “thwart publication of information which should be disclosed in the public interest,” the campaign said.

The campaign’s convener, Carole Ewart, also suggested that proposed secrecy clauses would breach United Nations sustainable development goals agreed by Scottish ministers. “The Scottish Government has failed to comply and instead has introduced a new layer of secrecy,” she told The Ferret.

“The broad provisions within section 36 mean that information which Scots law could potentially prevent being published include factors causing poor health, drivers in climate change and causes of environmental degradation.”

She added: “These are precisely the kinds of social, economic and environmental issues that the sustainable development goals are designed to address. Scotland is out of step with its own declared ambition.”

Labour’s environment spokesperson, Claudia Beamish MSP, is considering proposing an amendment to the bill “depending on clarification from the Scottish Government”.

She said: “The people of Scotland have the right to know what is being done in our name to properly protect and monitor the environment and what enforcement action is being taken, so we can  have the highest possible environmental standards, as we sadly grapple with leaving the EU.”

A Scottish Government spokesperson said: “We shall consider carefully the views of the Scottish Information Commissioner. The provisions for the confidentially of proceedings are designed to ensure that the proposed new governance body can carry out investigations effectively.”

Photo thanks to iStock/arabs.

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