Category: AIE

Last month, TheStory.ie’s parent body Right To Know instructed FPLogue solicitors to write a complaint to the Aarhus Convention Compliance Committee (ACCC) in Geneva – the UN body empowered to oversee implementation of the Aarhus Convention. The complaint forms part of Right To Know’s objective to push for greater public rights to access information.

The complaint concerns the overwhelming decision-making delays both from the Office of the Commissioner  for Environmental Information (OCEI) and from judicial processes in Ireland in relation to requests for access to environmental information, and any appeals that result from those requests. These lengthy delays are, we believe, a breach of the Aarhus Convention which Ireland ratified in June 2012.

You can read our complaint here. 

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What is the Aarhus Convention?

The Aarhus Convention is pretty radical – which is why we like it. We strongly encourage people to read the Convention in full. The Wikipedia definition is good:

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on 25 June 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001. As of March 2014, it has 47 parties—46 states and the European Union.^[1] All of the ratifying states are in Europe and Central Asia…

The Aarhus Convention grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on matters concerning the local, national and transboundary environment. It focuses on interactions between the public and public authorities.

What is the ACCC?

Under Article 15 of the Convention, the Meeting of the Parties (ie countries party to the Convention), established a compliance committee which among other things accepts complaints from members of the public or NGOs concerning non-compliance by States with the terms of the convention.

The ACCC is composed of independent lawyers acting on a pro-bono basis. They make recommendations on compliance or non-compliance based on the complaints they receive, or on their own initiative. As the UN guidance states:

The compliance mechanism of the Aarhus Convention is unique in international environmental law, as it allows members of the public to communicate their concerns about a Party’s compliance directly to a board of independent experts, the Compliance Committee, who have the mandate to examine the merits of the case. However, the Committee cannot issue binding decisions, but rather may make recommendations either to the MoP, or, in certain circumstances, directly to individual Parties.

The committee makes recommendations to the MoP, and in turn the MoP can enforce the Convention through mechanisms, such as:

a) Provide advice and facilitate assistance to individual Parties regarding the implementation of the Convention;

b) Make recommendations to the Party concerned;

c) Request the Party concerned to submit a strategy, including a time schedule, to the Compliance Committee regarding the achievement of compliance with the Convention and to report on the implementation of this strategy;

d) In cases of communications from the public, make recommendations to the Party concerned on specific measures to address the matter raised by the member of the public;

e) Issue declarations of non-compliance;

f) Issue cautions;

g) Suspend, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, the special rights and privileges accorded to the Party concerned under the Convention;

h) Take other non-confrontational, non-judicial and consultative measures as may be appropriate.

What is the issue you are complaining about?

Delays. As we state in our submission, there are lengthy delays in getting decisions from appeals bodies in Ireland. In the case involving us and NAMA, it took more than 5 years for a final decision to be issued, and even then it was still only a preliminary matter. We believe this to be a breach of Ireland’s obligations under international law – Article 9 mandates that parties to the Convention must:

… provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

We believe Ireland to be in breach of the “timely” component of the Convention – the focus of our complaint. We believe Ireland is obliged to remedy this lack of timeliness in appeals processes related to environmental matters.

Why is this important?

Time is extremely important when it comes to accessing information, and specifically information in relation to the environment. Delays in appeals have knock-on affects on how civic society understands environmental issues, or acts on environmental issues that are time sensitive (think pollution or emissions for example).

What will happen now?

The ACCC has accepted our communication (2016/141) and we will participate in the upcoming process. The communication will now be reviewed for admissibility by the Compliance Committee at its 54th meeting to be held in Geneva between 27 and 30 September and if it is found to be admissible, the Committee will invite comments from the Ireland and others and will investigate the allegations of non-compliance.

Here is a copy of the judgment in NAMA vs Commissioner for Environmental Information, given this morning.

Our statement:

“We welcome the decision of the Supreme Court today finding that NAMA is a public authority subject to the Access to Information on the Environment Regulations 2007/2011. We are thankful that the Office of the Commissioner for Environmental Information agreed with our interpretation of the law when it made its initial decision in 2011, and subsequently defended that decision through the courts.

We regret that NAMA did not handle the issue better at the outset -as the ruling itself noted – and that it has taken nearly 2,000 days for what was a preliminary matter to be decided, involving significant expenditure of public money. However the public now has greater clarity on the applicability of the Regulations, and the public’s right to know has been broadly vindicated by the Supreme Court. We look forward to NAMA fully implementing its obligations under the AIE Regulations 2007/2011.”

The key paragraph:

If the law stood as it was at the time of the High Court’s decision I would have considered it necessary to refer a question to the ECJ as to whether a body such as NAMA was a public body for the purpose of the exercised public administrative functions. The definition section of the Directive is unclear, and it is also necessary to consider the Aarhus Convention. However the decision in Fish Legal provides an authoritative interpretation of the Directive, and moreover does so in the context of a common law system. Applying that test it is clear that NAMA is indeed a public authority exercising public administrative functions. Although like the water companies in Fish Legal, it is obliged to act commercially, it is undoubtedly vested with special powers well beyond those which result from the normal rules applicable in relation between persons governed by private law. If anything, the case is clearer here. The water companies in Fish Legal were companies established in private law whereas NAMA is established pursuant to a statute which confers upon it substantial powers of compulsory acquisition, of enforcement, to apply to the High Court to appoint a receiver and to set aside dispositions. The Act also restricts or excludes certain remedies against NAMA. The establishment and operation of NAMA is a significant part of the executive and legislative response to an unprecedented financial crisis. The scope and scale of the body created is exceptional. Indeed if it were not so it would not be in a position to carry out the important public functions assigned to it in the aftermath of the financial crisis. Accordingly, for the reasons set out above, I would dismiss the appeal.

Back in February 2010, we sent a request to NAMA seeking certain information under the Access to Information on the Environment (AIE) Regulations. NAMA had just been established. We sent a similar request to Anglo Irish Bank. Both rejected our requests on the basis that they did not see themselves as public authorities under those regulations. We disagreed.

For 5 years the case has wound its way through the system, from a Commissioner ruling in September 2011 (which went in our favour), to High Court hearings in 2012 and two High Court judgments in early 2013 (the judge ruled against NAMA on both the substantive issue and on the issue of a stay, pending a Supreme Court appeal). We had to seek, and were granted, an expedited hearing after NAMA appealed both. There were almost two days of hearings in the Supreme Court in 2014, before five judges.

On June 23 they will issue their judgment.

The issue to be decided, among others, is what the term “and includes” means in the Regulations, and whether NAMA/Anglo, by virtue of being listed in 3(1) under the definition of public authority at parts vi) and vii), are in fact public authorities.

If the court rules as we believe it should, then NAMA becomes a public authority under AIE, and all bodies listed in parts i) to vii) of 3(1) of the Regulations become de facto public authorities (below), and we will finally have legal clarity.

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held—

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;