- Bishop Hill blog

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.

Secondly, academic freedom is now a human right that trumps the Aarhus Convention, the IPCC’s Principles Governing IPCC Work and their Appendix A Procedures. The Tribunal comes to this conclusion based on just 15 words from the EU Charter of Fundamental Rights,

The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

Here I must confess that I was somewhat confused, since the EU Charter is not obviously part of UK law. However, I found that I was in good company and a “must read” document is the House of Commons European Scrutiny Committee’s report, the summary of which begins:

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.

The case referred to by the Committee, also known as the NS judgement, is also well worth reading. The Judge had commented:

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.