58 - Spooks, climate change and the Aarhus Convention

The decision of the First-tier Tribunal (General Regulatory Chamber) Information Rights given on 24 January of this year in Cross v ICO [2025] UKFTT 0073 (GRC), 2025 WL was an unusual one.

Helen Cross made a request under the EIR Regulations for: (i) the amount of CO2e produced by MI5, broken down by scope 1, 2 and 3 emissions during 2021 and 2022; and (ii) a list of activities that are included in the scope 3 emissions calculation.

The request was refused because of the adverse effect on national security (see reg. 12(5)(a) of the EIA Regulations). This decision was upheld by the ICO.

Before the FTT it was argued that the Aarhus Convention was clear that individuals had the right to live in environmentally safe circumstances and that increased access to environmental information would lead to greater awareness, a free exchange of views, more effective public participation in decision-making and a better environment (see the judgment at para. 12).

Cross challenged both the applicability of the national security exception and the public interest test being balanced in favour of withholding the information (ibid, para. 13).

The FTT at para. 39(c) noted, by reference to the guidance in Vesco v Information Commissioner [2019] UKUT 247 (AAC), that in “[t]he public interest (or various interests) in disclosing and in withholding the information should be identified; there are values, policies, etc. that give the public interests their significance” and that the factors relevant to determining what is in the public interest in any given case are usually wide and various: “[c]learly the statutory context in this case includes the backdrop of the Directive, the Aarhus Convention and the policy behind recovery of environmental information.”

The FTT upheld the ICO’s decision notwithstanding the Aarhus Convention (emphasis added):

“64. The Tribunal began the public interest consideration with the presumption in favour of disclosure. The Appellant put forward a compelling case as regards climate change and the need for organisations, especially public authorities, to implement changes to reduce their carbon emissions as a serious issue now and for future generations. The cogency of these submissions was accepted by both Respondents and equally by the Tribunal. The impact of climate change is almost universally acknowledged and urgent action is required to abate further deterioration of atmospheric conditions, to reduce the rise in sea levels and to reduce global-warming. The issue affects all citizens across the Earth and the impact cannot be understated in terms of its significance. The Aarhus Convention was adopted to provide citizens with this type of information to allow for awareness, debate and informed action. This factor was a compelling consideration to be factored into the public interest test.

65. All this said, the public interest in MI5 carbon emissions as a public body is influenced by the size of MI5 as a small specialist arm of the government as opposed to the emissions of the government as a whole, which would attract a weightier public interest in disclosure.

66. Moreover, the central argument from the Respondents was even more compelling. National security issues are dominant and pressing, impacting on everyone, and requiring hyper-vigilance at all times. Terrorism has struck at the core of security and hostile actors remain in eager search of any nugget of information that may assist their cause. The public has a legitimate interest in MI5 not being compromised in its ability to keep the population safe. The Tribunal considered that the disclosure of seemingly harmless information and the mosaic effect of piecing together information to be at the core of this appeal. MI5 had confirmed that hostile actors were increasingly sophisticated in their use of raw data and data collection.

67. Having found that the disclosure of the information requested would adversely affect national security, that factor weighed determinatively in the balance towards withholding the information. On that basis, the appeal is dismissed.”

This blog post was written by James Maurici KC.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.