Anti badger cull demo in Oxford, 25th October 2014. Photo: Snapshooter46 via Flickr (CC BY-NC-SA).
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Badger cull: protestors' legal right to information upheld
1st April 2016
Since December 2011, when it became clear that the government was intent on its badger cull, Defra and Natural England have been flooded with FOI requests about how the culls would be set up, conducted and monitored. The notable success of Anna Dale in cutting through official obfuscation has implications for everyone trying to protect the environment and wildlife.
The ability to monitor and assess the effectiveness of the pilot culls is a significant public interest ... in all the circumstances of these appeals the public interest in maintaining the exceptions does not outweigh the public interest in disclosure.
Many Freedom of Information (FOI) requests are refused on various grounds.
"Not allowed under the Environmental Information Regulations" is a favourite, Defra banking on the hope that no one has read the EIR.
Sometimes the information released is so blacked out it is meaningless. Or it would not be "in the public interest".
Details, including names of farmers, landowners or culling contractors, cannot be given as it would "compromise public safety", even when the request had specifically stated names were not sought. Or Defra or NE "does not hold that information".
Disheartened, many people do not persevere. Anna Dale did. After a lengthy battle she succeeded in getting the information she wanted, after she and the Information Commissioner's Office (ICO) went to court.
Anna made an FOI request to Defra and three to NE (between April and October 2013). Answers to the initial letters being unsatisfactory, Anna wrote again, asking for "internal reviews" which also proved unhelpful. Anna pressed on and took her failure to gain the wanted information to the ICO.
She had to wait some time before being assigned a case officer, but the ICO supported her and ordered Defra and NE to release the information. They appealed.
September 2015: the case against the Defra and NE appeals is heard by the Information Tribunal.
Defra was more than muddled. First it said it did hold the information but refused to release it.
After the review it said it didn't hold the information. During the hearing it was ordered to search again with the result that it couldn't supply the information requested because it held some but not all of the information needed for a complete answer. The Judge allowed Defra's appeal but politely told Defra to get its act together and stop wasting people's time and money.
Did you understood that? The lesson to take from this to-and-fro exercise is, in your initial FoI request, to ask that the authority undertakes "adequate and properly directed searches in your Department and any Executive Agencies."
The information Anna sought included:
- The total area of each ring area or buffer zone in square kilometres for West Gloucester and West Somerset. It turned out there were no buffer zones recorded for West Gloucester which, Anna said, was in itself a significant cause for concern when trying to assess the results of culling.
- The information in the Badger Control Plans of all applicants in the WG and WS Pilot Areas and the reserve pilot cull area for Dorset which had not already been disclosed, except for the applicants' identities.
The right to environmental information
The Tribunal's decision provides some very useful reading for those campaigning against the culls. To start with:
The whole of the public's right to environmental information comes under two closely related bodies of laws, the first being the Aarhus Convention which grants citizens the right to environmental information, and enables them to take an informed part in any decisions concerning their environment, and informed protest if they disagree with those decisions.
In 2004 the UK enacted the Environmental Information Regulations 2004 (EIR), implementing the EC Directive on public access to environmental information. The Directive closely follows Aarhus. The Judge and his Panel made great use of these laws in forming the Decision. For instance, Aarhus says:
" ... in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns".
These values condition the interpretation of the EIR, said the Judge, stressing the point that the public has an over-riding right to environmental information and that any refusal to disclose it has to be "restrictive". Thus, a public authority "shall apply a presumption in favour of disclosure."
Note the 'shall' - as in 'must', not 'may'. Any grounds for refusal must be "specific and clearly defined".
Under the EIR, information may be refused on these grounds:
- The authority does not hold the information (as in Defra, which did, didn't and partially did)
- Disclosure of the information would adversely affect "international relations, defence, national security or public safety; or the protection of the environment to which the information relates."
- Public interest can also be cited.
As culling badgers would not affect international relations, defence or national security, NE depended on protection of the environment, public safety and public interest. Thus they argued that culling badgers was 'protecting the environment'. The Judge said:
"The anti-cull movement believe that vaccinating badgers and other measures such as restricting cattle movements are the way to protect the environment including cattle. These views, we are informed, are supported by many scientists."
There was much discussion about releasing the names of landholders (even though Anna was not seeking names), which NE said was a matter of public safety. NFU witnesses and NE argued that releasing such information would result in intimidation from 'activists'. One witness related how he had personally been targeted, but much of the evidence was anecdotal and 'speculative'.
The ICO took the 'restrictive' approach on safety issues. Simply put, beyond reported "worry and stress" among farmers, no actual physical harm occurred.
NE argued that the ICO's approach will lead to "drastic and terrifying results", that it "could endanger people's safety for no good reason" and that it is "a reckless and thoughtless construction."
Emotive language indeed, but the Judge noted that "the limited police figures and correspondence available in evidence ... do not support widespread chaos and illegality across the ... cull areas." Rather the contrary, as he pointed out:
"Most of the incidents described seem to us to be perfectly lawful protester activity, such as marching or demonstrating to gain public support for their cause; or identifying participants who can be lobbied and using largely lawful methods to try to persuade them to cease involvement in the culls through social media, phone calls, writing polite letters to retailers of farm produce etc."
Given the recent news about the release of the names of Devon farmers, and despite the fact that the majority of anti-cull people do not approve of abusive or confrontational behaviour, the phrase 'perfectly lawful protester activity' is worth studying.
NE also argued that the destruction or removal of the cage-traps "compromised public safety". Such activity is illegal but, as Dorset Police said after the 2015 cull, there were no arrests or prosecutions because there were no witnesses or proof as to who was responsible. The Judge said:
"There is, for example, no necessary need to treat an adverse effect on property (such as a badger trap) as having the same weight as an adverse effect on safety from a physical attack on a person or an inhabited dwelling."
'Public interest' or 'government interest'?
Government and its allies have always cited 'public interest' when what they mean is 'government interest'. The Judge said: "the whole basis of Aarhus and the Directive is to encourage public participation in environmental matters. That participation encompasses, as a central feature, public protest on matters of environmental concern.
"Where, as here, Government policy on an environmental issue is a matter of substantial debate and concern, the provision of environmental information, including information facilitating protest, is vitally important. Increased protesting in the cull areas (or better directed protesting) is perfectly legitimate in a democratic society." (Emphasis added)
He continued: "The ability to monitor and assess the effectiveness of the pilot culls is a significant public interest particularly in view of the public controversy surrounding the badger culls."
The final paragraph of the Decision reads: "We have considered the public interest balancing exercise and also the presumption in favour of disclosure and find that in all the circumstances of these appeals the public interest in maintaining the exceptions does not outweigh the public interest in disclosure for the reasons given above.
"In summary we find that in the circumstances of this case the weight we give to the ability of protesters to be able to more effectively monitor the effectiveness of a controversial Government policy is greater than the weight we give to the combined increasing risk of harm to farmers and the stopping of the culls."
Anna won, and now we know - the public has the right to far more information on the environment than the authorities are willing to disclose. The public has the right to use that information to monitor activities that could, or is, harming the environment. This decision supports that right and can be used when pressing for more information.
This isn't just about the badger cull. It's about fracking, nuclear power, government policies on GM, pesticides, herbicides and destructive 'development' on SSSIs. It is about the people's right to fight for the health of the environment they are part of.
Indeed, the decision says that almost everything that 'protesters' are doing in their desire to stop some action that harms the environment (and all it contains) is legal Nor does it compromise public safety - although it may compromise unscientific prejudice or profits.
And note this: while this case was being heard Defra was holding a public consultation on its plans to considerably alter the guidance and regulations of the culls. People did respond to this consultation but Defra took no notice and did what it wanted anyway. Had this judgment been available, we would have read and acted on this:
"The fact that the Government is now ... carrying out a consultation on aspects of the Policy supports the need for respondees to that consultation to have access to as much information as possible so as to provide informed responses."
Well, they wouldn't want 'informed responses', now would they?
Thank you, Anna.
Lesley Docksey is a freelance writer who writes for The Ecologist and other media on the badger cull and other environmental topics.
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