The British government is short-changing the public on our right to access information on the climate crisis, wildlife destruction and river pollution. That’s why I am taking it to court.
This Thursday, 15 October, my lawyers will tell London’s High Court that ministers in this government and the last have breached their legal duty by failing to publish vital environmental information under the 1998 Aarhus Convention, which aims to protect everyone’s right to live in an environment suitable for their health and wellbeing.
The UK was one of 38 initial signatories to the Aarhus Convention, described in 2000 by then UN secretary-general Kofi Annan as “the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations”.
The treaty gives all of us a legal right to access environmental information and participate in environmental decisions – and to take the government to court if it breaches those rights, which is exactly what I am now attempting to do.
The origins of the case lie in my award-winning openDemocracy investigation into how the gas industry promotes technologies such as “hydrogen-ready boilers” and “blue hydrogen”, which perpetuate the use of gas.
I had been tipped off that on an expected strategic policy decision on the future of heating homes, the Department for Business, Energy & Industrial Strategy (BEIS) was leaning towards the gas industry’s preferred solution of hydrogen boilers, despite an overwhelming majority of independent scientists believing they are a false solution.
To find out if this was true, I asked BEIS for any reports on the potential future availability and cost of hydrogen for home heating. My request was submitted under the Environmental Information Regulations, which is underpinned by the Aarhus Convention.
The department admitted it held four reports but refused to release them to me, even after it was ordered to do so by the Information Commissioner’s Office (ICO), the watchdog that polices information laws. BEIS, and then its replacement, the Department for Energy Security and Net Zero (DESNZ), fought for two years to keep these reports secret.
In June last year, on the eve of an information tribunal hearing into the case, DESNZ released three of the four reports without explanation for its change of mind on publication.
It is still refusing to release the fourth report, which is potentially the most significant because it drew conclusions based on analysis in the other three.
The department claims the fourth report is “material in the course of completion” because ministers have yet to make up their minds what role hydrogen will play in home heating.
The absence of a strategic policy decision on hydrogen for home heating is helping the gas industry sell 1.5 million new gas boilers a year, keeping homes locked into burning gas and paying for gas pipelines for decades to come.
My frustrating experience with DESNZ made me wonder what other reports on key environmental issues are being kept hidden by public bodies. A quick search revealed that government departments and agencies frequently ignore their proactive publication duty under the Aarhus Convention.
For example, a report for the Environment Agency revealed that “forever chemicals”, known as PFAS, are contaminating up to 10,000 sites in England and cleaning them up could cost as much as £121bn. The government had no effective plan for dealing with this problem, so it sat on the report for 14 months – publishing it only after an Environmental Information Regulations request by the ENDS report, an environmental magazine.
The government also tried to hide a national security assessment on ecosystem collapse.
I sent Defra and DESNZ a series of requests to find out what they were doing to comply with their proactive publication duty.
Amazingly, neither department could produce any evidence that any official had even discussed the duty in the past two years. Neither had any policy on how it should comply with the duty.
Government lawyers responded to a pre-action letter admitting that more “awareness” of the duty was needed across government. However, they adopted a very narrow interpretation of that duty in order to claim compliance.
My legal team and I think their interpretation is wrong and are seeking permission to bring a claim for judicial review to force the government to adopt an active publication policy on vital environmental issues.
The ICO has joined the case because it believes it could establish legal clarity as the first case to reach court concerning the proper interpretation of the government’s proactive publication duty.
If we succeed, the government will be forced to be more open with what it knows about the interlinked environmental crises we face and how to solve them. Armed with that information, the public could then put more pressure on ministers to act – the whole reason that the framers of the Aarhus Convention gave us these rights to access environmental information nearly 30 years ago.
Ben Webster would be grateful for any donations to his crowdfunder to help pay the legal fees to fight this case.