David HollandThe human rights of Professor Wadhams
This is a guest post by David Holland.
I recently received the Information Tribunal decision in respect of my request to the University of Cambridge for Peter Wadhams' AR5 Review Editors’ reports. It is short and to the point. The Tribunal dismissed my appeal on two separate grounds. As I read the decision, if unchallenged, it means that no employee of a public authority participating in any IPCC assessment, even if entirely at the public’s expense, can be required under the EIR to disclose environmental information created or received in connection with it, if their work was entirely voluntary.
Firstly, the Tribunal decided, based solely on Aarhus article 5(1)(a) that the Commissioner was entitled to re-interpret what I thought were the clear plain English definitions of “information held” in the Convention, Directive and Regulations to mean the opposite of what the Secretary the State’s statutory code of practice states.
The arts and scientific research shall be free of constraint. Academic freedom shall be respected.
This Report arises from the state of confusion which exists in the UK about the applicability of the EU Charter of Fundamental Rights. It was prompted by the comments of a High Court judge in November last year, which the Government sought to correct in the press, and which were debated on the floor of the House of Commons. In the first chapter of the Report we conclude that both this and the previous Government bear some responsibility for this confusion.
It can be seen that the legal basis of the claimant’s claim rests in part on alleged violations of the Charter of Fundamental Rights of the European Union. When I read this in the skeleton argument on his behalf I was surprised, to say the least, as I was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law.
The judge in NS case went on to conclude that a ruling from the European Court of Justice means that the Charter of Fundamental Rights did create further justiciable rights in the UK, one of which was the right to academic freedom.
Whether academic freedom truly does involve occupants of the ivory tower being placed above Freedom of Information legislation is a moot point, but for the moment the Tribunal seems to have concluded that it does.
In a statement to the House of Commons in November last year the Secretary of State for Justice stated that the Government did not agree with the judge’s analysis of the NS case, that it would look for another case to rectify the situation, and that the Charter applied only to the application of EU law in the UK.
I had no idea that a simple request for IPCC Review Editors’ reports might lead me into this morass. They say that he who represents himself has a fool for a client. I am not sure this is true in the First Tier Tribunal but I am less enthusiastic about taking this case to the Upper Tribunal. I will be interested to see what BH readers might think.
Reader Comments (67)
Raff,
Did you visit me one day? At least we now know exactly where you were coming from. In the UK we believe that everyone is equal before the law, so I support your right to seek the information you want, although my reading of the judgement in your case is how I understood the law treated charities. Having been a treasurer of one I would would always advise trustees not to disclose any personal data such as who gave what.
However, let me say that it was Greenpeace's use of Aarhus in 2007 that alerted me to its power. Prior to Greenpeace almost no one knew of it.
No, not me.
"I would would always advise trustees not to disclose any personal data such as who gave what."
Wise policy I guess, especially for charities that later have to be split to avoid losing their status. One never knows the motivation of those who seek such data, does one?
And I would advise academics not to disclose any of their working papers. There's always the risk that someone wants to misrepresent them in a way that is harmful. Not you of course. And I am not the slightest bit interested in your correspondence with Andrew Montford, GWPF or anyone else.
I have never given FOI legislations much thought. I guess I support the idea in principle, but the problem is sorting the wheat from the chaff, the legitimate from the vexatious. And pursuing academics for their private correspondence is far closer to the latter than the former.
Raf fancy going after WFF and Greenpaces e-mails to see how strong their links to the IPCC and various political lobby groups are, which as a charity they should not have . Are would that be different ?
Meanwhile I wonder if you be happy for academics working on GM , drugs or nuclear to claim they should not have to face FOI because of academic freedom.
I know that in the name of 'the cause ' some think all things are justified ., but in the eyes of the public hypocrisy remains hypocrisy even when those practising it claim to be 'saving the planet'
you want public cash you play by the rules or you do not take it .
Johanna: You said: "harry, get back to me when you put your point in plain English. Why the snark? I mean, English is my first language but sometimes I admit to being a bit thick.
I was really testing my comprehension, which seemed at odds with my initial understanding of what you said. Which was: "Civilisation requires that there is no active human activity that is "free of constraint."
OK, I initially interpreted that to mean that 'human activity [should be] free of constraint'. But then I thought you had used litotes as emphasis when you said, "...no...human activity..." and that negative threw me. ie: if there is no human activity that is free of constraint then all human activities are constrained. I'm afraid my poor English can't explain it any better.
Hi Mr. Holland,
I will give you my opinion as an American lawyer outsider. First, I would say that I greatly respect your work and efforts and hope you succeed. On the other hand, filing FOI appeals without legal assistance is like being a Christian thrown out among the lions during Roman times. This is particularly so where the tribunals that rule on your request almost certainly have a propensity to disagree with your underlying goals.
I would generally liken the law to a cobweb, in that there are many similar principles that are linked to each other. For instance, in Ohio, where I practice, workers compensation laws are to be liberally construed in favor of employees, and Ohio's open record law is to be liberally construed in favor of disclosure. If, for instance, the Ohio open records "liberal construction" provision was narrowly circumscribed that could affect the right of workers, which any court in Ohio would instinctively understand when construing the open records act. Almost surely there are UK Laws that are impacted by the construction of the UK FOI. (and vice versa) Lawyers knowledgeable with respect to UK Law should have a good deal of practical and legal missiles to lob at the FOI tribunals. Between the subtleties involved and the necessity of understanding a large number of legal principles, it is not feasible for most lay people to find related principles that could be very helpful to a FOI request.
Personally, I strongly suspect that there are very good UK lawyers who believe in open records and that if you searched for public interest law organizations or lawyers with strong personal beliefs about the importance of FOI legislation that you would find very capable lawyers would help a great deal. And, it is possible that some of them would not charge a fee. In any event, this is just the opinion of one American lawyer who desires that you succeed in your FOI request. I hope my post can help you in some way.
JD
KNR: "Meanwhile I wonder if you be happy for academics working on GM , drugs or nuclear to claim they should not have to face FOI because of academic freedom."
Yes, I would. Can you suggest a case where their legal private work/correspondence should not remain private?
"Civilisation requires that there is no active human activity that is "free of constraint."
Except thought and imagination, of course. Or is that not obvious?
Raff, your trolling is wasted on me.
Go away.
And I mis-named Pat Swords as Pat Michaels above. Sorry, Pats. :)
johanna, if you are going to make statements that you think are profound, make sure they are right.
Ha!
The Guardian have run a piece on the prevalence of Academic Bullying
if they can play at semantics so can you.
Wadhams was not involved in academic work nor was he involved in "scientific research". Appeal the decision!
Just out of interest, has the university department claimed in their ref/Rae documents that the professor's work on ipcc should be considered as a reflection on the department ?
Per
Good to hear from you Per.
I had not looked for any REF/RAE documents until seeing your comment and have not since found anything useful. However the 'Generic Role' seems to me to show beyond any doubt that Wadhams' IPCC work and those others at Cambridge fits squarely with it. See it here:
http://www.hr.admin.cam.ac.uk/files/professor.pdf
This is only one of about 8 pieces of evidence not properly taken into account by the Tribunal to show that IPCC work is, like many Universities, embedded in its fabric.
I had suggested earlier that I would seek comments on my proposed grounds of appeal. However, on reflection I think it better to do so offline. I greatly appreciate the advice BH readers have given and will be delighted if anyone, particularly Pat and Paul wants to review what I have. Clearly I would welcome any advice from those with legal experience on the Upper Tribunal in respect of FOIA/EIR. My email address is first name initial dot surname at theiet dot org. Alternatively email me via BH.
Mr. Holland,
I checked out the EU Charter and there is much that is helpful to you. One thing that popped into my head is that by trying to game peer review and stifle skeptics alarmists are violating the right of skeptics to engage in scientific research. Also, article 42 provides for the right of citizens to obtain EU Documents.
JD
JD,
I agree. The Charter does not help the decision of the Tribunal, who incidentally cited article 14 instead of 13. As is pointed out we are all academics when we objectively analyse matters. Academic freedom applies to critics as well as supporters of any consensus view. Challenge, full and prompt disclosure of data and methodology is at the heart of the scientific method. However the coup de gras is in Charter article 53 which states:
Directive 2003/4/EU from which the UK's EIR descend are an enhancement of Directive 2090/313/EEC and long predate the Charter which cannot therefore be enlisted to suppress the right of access to environmental information.
David: I'm sure you could make a good case that the authors of this decision didn't understand how the IPCC actually operates: 1) The Summary for Policymakers is negotiated in secret, after which the body of the report is changed to conform with the SPM. 2) The IPCC also controls the content of its reports because it controls the authors. Even if Britain nominates scientists with a range of views, the IPCC controls content because it picks the nominees it prefers. 3) Scandal prompted a review by the IAC, but few of their recommendations were implemented. For example, the IAC recommended conflict of interest statements, but the IPCC didn't require them for AR5. 4) The greatest strength of the IPCC is the fact that drafts of its reports are allegedly peer-reviewed by any interested scientist. The public needs to know if such peer review has been properly carried out. Professor Wadhams was responsible for seeing that the authors made accurate responses to the many comments and corrections that were submitted. The IAC collected evidence that reviewers like Professor Wadhams made little effort to see that submitted comments handled appropriately in the past. 5) I believe the IPCC's rules say they are supposed to disclose the comments from peer reviewers and the response from authors, but have failed to do so. 6) When the IPCC doesn't follow its own rules or its charter, the is no higher authority to which one can appeal. Given the astronomical amount of money at stake, Paragraph 12 is clearly in incorrect about the lack of public interest (and exposes the bias of this Tribunal).
David, you are as much a scientific researcher/journalist as Professor Wadhams. You are researching how the IPCC actually works and functions. Your work is as important - if not more important - than Wadhams. The IPCC relies on hundreds of authors and the work of thousands of climate scientists. Only a handful of people study the IPCC.
I'm not sure you can make a good case that the university "holds" information that Professor Wadhams received while volunteering for the IPCC. His salary from the university and his access to university resources (especially the library) made it feasible for Professor Wadhams to help the IPCC. Wadhams was responsible for reviewing how X thousand comments were handled. The vast majority of Wadhams' job for many months must have involved volunteering for the IPCC. Have other professors been required to turn over information in similar circumstances? Without a good precedent, this decision will probably survive.
Suppose I were a university professor spending most of my time compiling information for a book I was writing while using university resources and living off my university salary. Does the pubic have any right to look at my notes and see if the book I published accurately reflected the information in my notes? If my research were funded by a public grant administered through the university, things might be different.
Good luck.
Frank,
Thanks for thoughts. The law was reasonably straightforward on whether the University holds information if it is environmental. If it received or created environmental information, or someone else did on its behalf, until this tribunal decision, it definitely held it. However, the Commissioner, has redefined "held" using a specious argument relating to the binding commitment of parties to the Aarhus Convention in article 5 to ensure that public authorities progressively disseminate the environmental information which they actually hold.
To ensure this happens the Convention imposes a duty on the parties to make sure that their public authorities have the information in the first place. For practical reasons there must me some limit to what each public authority should be compelled to hold. Article 5(1) only compels public authorities to possess and update environmental information that is relevant to their functions.
The EU Directive which compels EU states to incorporate Aarhus into their law includes the Aarhus article 5(1) in its article 7 on Dissemination, but in its article 3 on Access, and as is the case with Aarhus, does not restrict what must disclosed upon request, if it is held. The commissioner has persuaded the tribunal that the EU and Aarhus must have intended that Access on request should have the same restriction even though the simple text necessary to say so is not included. As I understand it, UK courts need more compelling arguments to add new text to existing law.