Tony Lowes
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By Tony Lowes ‘Governments treat the information in their possession as a resource, to be doled out in amounts as they see fit, either copious flows or mean little trickles. I noted that ultimately, it is the Government that controls the tap – Emily O’Reilly, Information Commissioner 2003-13’ In a serious blow to Freedom of Information in Ireland, the newly appointed Information Commissioner and Ombudsman Peter Tyndall has withdrawn his predecessor’s appeal against a High Court judgment that the constitutional right to cabinet confidentiality can not be superseded by rights under EU. Under EU law, no emission to the environment can be exempted from the access to information legislation for any reason – not “commercial sensitivity” or “internal communications” or even “cabinet confidentially”. Requests for information often fall to many such exemptions. But if the information concerns “emissions to the environment”, that information must be released. Nevertheless in 2008 when Emily O’Reilly overturned the government’s decision not to release a cabinet minute relating to greenhouse gas emissions the Government took her to the High Court, which ruled in June 2010 that the Constitution trumped EU law. O’Reilly appealed to the Supreme Court, where the decision – described by one expert as “questionable in EU law” – could be debated at the highest level and if necessary referred to the European Court of Justice for its views. Scheduled to be heard this year, this prospect has been dashed by the new Commissioner’s withdrawal. Strangely but “strongly” of the view that the appeal would not succeed, the Commissioner admitted that he was aware the case raised issues “which went beyond the single question of access to the single document sought”. He was, however “cognisant of the severe financial constraints within which this office is obliged to operate”. His office also admits that the current Government is increasingly unhappy with its separate agencies fighting in public. It is to be hoped that more fibre is on display on April 7, when the Supreme Court is due to hear the Government’s appeal against O’Reilly’s ruling that NAMA is a public authority subject to Access to Information legislation, in a case brought by Gavin Sheridan. As Welsh Ombudsman, Peter Tyndall, a Trinity graduate and ex head of the Welsh Arts Council, spoke widely and wrote a number of articles emphasising the importance of extending the Ombudsman’s remit to public-service delivery by private-sector organisations “since the distinction in delivery…becomes increasingly blurred”. Public outcry may have led to the inclusion of Irish Water but the FoI Act continues to exclude 37 public bodies – from the largest landowners, Coillte and Bord na Mona – through An Post, Tourism Ireland, the Food Safety Promotion Board, the bus companies, the airport, harbour and port authorities, and the National Lottery. Even so, with a large number of bodies now coming under FoI under the new legislation, the delays that were characterised as “unacceptable” in the last Annual Report are now threatening to bring the whole system to a standstill. Only 18% of the cases dealt with under FoI were decided within the legal timeframe in 2012. No matter how right you are, justice delayed can be justice denied. There was some anger in the Information Commissioner’s office when the first Aarhus Convention National Implementation Report was released last month by Phil Hogan’s Department of the Environment. It breezily dismissed any concerns of chronic under-funding by saying that the Information Commissioner was entitled to seek any necessary funds from the Minister for Public Expenditure and Reform. The Ombudsman had made repeated such requests – and 5 new staff have been appointed to address the new legislation – but while the case closure rate is going up, the number of cases is rising faster. Nor has the Aarhus convention proved to be the white knight that many had hoped. Designed by NGOs under the auspices of the United Nations – led by Irishman Jeremy Waites – the convention promised better access to information, participation, and justice. UCC’s Dr Aine Ryall drew attention to a submission to Hogan’s Aarhus Report made by the Department of Justice: “In cases where the court does not deliver a considered, written judgment the decision of the court is recorded in a court order which is available only to the parties to the case”. She pointed out that many court decisions are in fact delivered ex tempore and that this was usually true when it came to the awarding of costs – a crucial element of the Aarhus convention. “It follows from this unambiguous statement”, Ryall wrote, “that ex tempore court decisions, where there is no written judgment, are not publicly accessible. This state of affairs is a clear breach of the express requirement in Article 9(4) that court decisions in Aarhus cases must be publicly accessible”. The Convention promised access to justice at a cost that is “not prohibitive” but we are denied the right to see how this has been addressed by the courts. Emily O’Reilly did much to advance Ireland’s tortuous journey towards transparency. Will her successor have the bottle to do the same? Tony Lowes is a Director of Friends of the Irish Environment
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Organic Greenwash
Pesticides from salmon farms are extremely ecotoxic to crustaceans, fish and humans – Tony Lowes
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The recent ratification by Ireland of the UN’s Aarhus Convention still has a year’s probationary period before citizens can lodge complaints against our authorities. The NGO inspired Convention requires access to justice and information. Ireland has, however, already found itself at the receiving end of a preliminary ruling that threatens the country’s vast subsidies for wind turbines against other forms of renewable energy, as well as EU funding for the new interconnector to the UK. Circumventing the fact that at the time he lodged his complaint Ireland has not even signed the Convention, engineer Pat Swords focused his complaint on the EU itself’s failure to ensure that the member states followed the Convention. The EU had ratified the convention in 2006. Swords’ complaint was deemed acceptable in 2010 and a preliminary ruling this year upheld his central tenet: that the ‘public authorities in Ireland and the Party concerned [the EU] failed to disseminate information concerning the Renewable Energy Feed In Tariff I programme (REFIT I) in Ireland – a programme supported by the Party concerned both by means of direct funding and by approving state aid – in a timely, accurate and sufficient manner.’ The ‘information’ includes the fact that no Strategic Environmental Assessment was done of the wind energy programme – a call that is being echoed by almost every community in Ireland adversely affected by wind developments. The National Renewable Energy Action Plan (NREAP) was not ‘subject to the necessary consultation and assessment’. One recent submission to An Bord Planala opposing the Clare grant of permission for a further 48 turbine windfarm north of Doonbeg makes the point succinctly: “All counties in Ireland have areas with sufficient wind speeds to make them economically viable – this is borne out by the presence of wind farms in these areas. It is evident that any national policy for Ireland which seeks to capture the country’s maximum capacity for wind energy can be achieved without impacting on areas with sensitive landscapes, ecology and hydrology.” The lack of a national Strategic Environmental Assessment has led to a wild west mentality with developer’s land grabs for mountains in remote areas where opposition will be scattered. Generous 20 year contracts offered by the companies to hard pressed landowners are subsidised by the taxpayer. Meanwhile, the aerobiotic digester programme remains underfunded. These digesters would take up the slurry now contaminating beaches and drinking water supplies and use them to produce fuel. An EU funded LIFE project at Silver Hill Foods in County Monaghan now takes the slurry of 3,000,000 ducks – 70,000 tons – and converts it to dry pellet fertiliser, capturing the methane to run the unit. Sword’s, whose lengthy internet publications indicate that his opposition to wind farms is just the tip of his conviction that mitigation against climate change is not economically viable, has now met unlikely allies in Geneva. The Scotish Avich & Kilchrenan Community Council has recently has its complaint accepted by the Compliance Committee. This too strikes at what it calls ‘the flawed consultation process at the heart of the Government’s renewables programme’ They allege, as did Swords, that they have been denied ‘the opportunity to participate in decision-making when all options are open and effective public participation can take place, rather than after programmes and targets are presented in a final form to the public.’ Under the Convention, Governments must make available the scientific justifications for programmes which are said to affect the environment in which we all live. Not only did the UK and Scottish Governments not do so, the community Council alleges that ‘the justification for the programme, namely the emissions savings attributed to wind energy, are false in that both the EU and the UK have systematically made claims which are neither transparent nor valid. The consequence has been that planning approvals and consents under the Electricity Act have been fatally undermined, since they have proceeded on an entirely false prospectus supporting wind farm development across the UK and the European Union.’ Continuing, they allege that ‘now that developers have exclusive investigative rights of search for the entire FCS [Forestry Commission of Scotland] estates, it has exposed the actual level of developer and FCS intentions under their new policy for hosting renewable energy projects.’ ‘We have a public authority’, they conclude, ‘with vast tracts of land held in National trust, engaged in multiple developments of a commercial nature in the field of energy, all of which as individual projects fall under Annex II of the Environmental Impact Assessment Directive, for which this same public authority is the competent authority for purpose of development consent.’ Sound familiar?
