A veil of secrecy could be drawn over government failures on the environment and climate goals because of new restrictions set to be made law in Boris Johnson’s environment bill.
Campaigners have sounded the alarm over a “secrecy clause” in the bill that will prohibit the Office for Environmental Protection (OEP) from revealing evidence and key discussions with the government and other public bodies.
The watchdog is being established by ministers to carry out oversight previously the responsibility EU agencies before Brexit, and will be tasked with holding the government to laws on tackling pollution, meeting climate goals, and conserving the environment.
But under paragraph 42 of the bill the office will be banned from revealing any information provided to it by public authorities, including the government – and will not be allowed to reveal correspondence with ministers without their say-so.
Other information like unpublished specifics on whether the government and public authorities are meeting their climate crisis goals could also be kept from public view.
The government says the secrecy clause is necessary to provide a “safe space for dialogue” with the watchdog, but freedom of information campaigners say the law will destroy public transparency on environmental decisions.
The prohibition also appears to interfere with the longstanding Environmental Information Regulations (EIR), which give every citizen freedom of information-like powers to access information and documents relating to the environment.
Despite the bill having a list of exemptions to the disclosure prohibition, none of them protect the EIR freedom of information rules, though the government claims they will not be affected.
But Maurice Frankel, director of the Campaign for Freedom of Information, told The Independent: “The bill either prohibits disclosure of information by the OEP or increases the chances of it being withheld under an expanded exemption, or both.
“At first sight it’s not clear why new restrictions should be needed, given that the Environmental Information Regulations already allow information to be withheld if disclosure would be harmful and not in the public interest.
“The answer may be to protect ministerial lobbying. The OEP may need to take enforcement action against ministers if they fail to comply with environmental legislation. Even when it acts against other authorities it must keep ministers informed.
Ministers will be able to intervene in secret, pressing the OEP to tone down, delay or drop any action, interfering with what is meant to be an independent regulator
Maurice Frankel, director, Campaign for Freedom of Information
“Where there are major implications for government expenditure or projects ministers will be able to intervene in secret, pressing the OEP to tone down, delay or drop any action, interfering with what is meant to be an independent regulator.
“The government should scrap the proposed prohibition on disclosure which fundamentally undermines the public’s rights under the EIR, and contravenes the Aarhus Convention to which the UK is a signatory.”
In 2019 the bill, which is currently in its report stage in parliament, was criticised by 40 leading environmental and transparency organisations for its secrecy clause.
Groups including Greenpeace, Friends of the Earth, the National Union of Journalists and the Open Rights Group warned that the approach amounted to a “damaging and unjustified restriction on the public’s right to environmental information”.
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On Wednesday the Public Accounts Committee warned in a new report that the watchdog could be too close to government an unable to scrutinise it properly.
The cross-party group of MPs said: “We also remain to be convinced either that the new watchdog, the Office for Environmental Protection, will be able to hit the ground running after the delay to its creation or be sufficiently independent from government.”
Asked about the secrecy clause, a spokesperson for Defra said: “The OEP will provide crucial scrutiny and advice on the implementation of environmental law. It is vital that this is done transparently, but confidentiality will be vital in facilitating open dialogue between the OEP and public authorities.
“It will also be responsible for investigating and taking appropriate action on alleged serious breaches of environmental law, and it is important that the appropriate degree of confidentiality is provided to the OEP during any ongoing enforcement proceedings. These provisions are not unique or controversial for bodies with investigatory powers.
“We are confident that the provisions in the Environment Bill as drafted now do not override the Environmental Information Regulations and any requests will be treated on a case by case basis with a public interest test in place if required.”
