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Aarhus, Access to Environmental Information and the Wednesbury Standard

In the important case of R (Evans) v Attorney General [2014] EWCA Civ 254 the Court of Appeal has considered the role of the court in access to environmental information cases under Directive 2003/4/EC and the Environmental Information Regulations (“EIR”) which implement it.

The facts of Evans are well known: Mr Evans, a journalist, sought disclosure of letters sent by the Prince of Wales to Government Ministers under the Freedom of Information Act and the EIR.  The relevant departments refused to release the information.  Mr Evans appealed and was successful before the Upper Tribunal, which ordered disclosure.  Rather than appeal that decision, the Attorney General vetoed the decision by issuing a certificate pursuant to section 53(2) of the FOIA.  Mr Evans sought judicial review of the decision of the Attorney General to exercise the veto power. The Division Court dismissed the application for judicial review and Mr Evans appealed.

Allowing the appeal, the Court of Appeal held that a review of the Attorney General’s decision was not limited to Wednesbury grounds.  Although the issue for the Court was whether the AG’s decision was reasonable, where the circumstances are such that an expert independent tribunal, following full consideration of the issues, has determined that the public interest favours disclosure, “there ha[s] to be something more than mere disagreement on the same material for it to be reasonable for [the AG] to disagree with [the Tribunal]…something more is required” (paras 37-38).  That ‘something more’ would include, for example, a material change of circumstances.  The Master of the Rolls also found that the veto, as contended for by the AG, would be incompatible with Article 6 of Directive 2003/4/EC which requires that decisions on access to environmental information be subject to a review procedure by the courts, with such decisions being capable of becoming ‘final and binding’ on the public authority concerned.

Of more general application (albeit obiter) were the Court’s comments on the nature of the review required by Article 6(2) of the Directive.  Article 6(2) requires that “Member States shall ensure that an application has access to a review procedure before a court of law…in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final”.  In the judgment of the Master of the Rolls, with which Lord Justice Richards and Lord Justice Pitchford agreed, whether Article 6(2) requires a de novo review by the Court or whether some form of judicial review is sufficient, was not acte clair and the Master of the Rolls would have made a reference to the CJEU.  Whilst “the policy imperatives of the Aarhus Convention and the Directive are clear enough in broad terms” the “difficulty question is whether a Wednesbury review is sufficiently flexible to meet the requirements of Article 6(2).

Given the broad meaning of ‘environmental information’ under the Aarhus Convention and the Directive, it seems likely that the point will subject to argument again in the near future and, given the comments of the Court of Appeal, that a reference to the CJEU will be made.