Decision
Hedge Laying Association of Ireland and the Department of Transport, Tourism and Sport
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0023
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0023
Published on
Decision of the Commissioner for Environmental Information on an appeal made under article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations)
On 6 March 2017, the Hedge Laying Association of Ireland (appellant) made a request to the Department of Transport, Tourism and Sport (Department) for the following information in electronic format:
“I. All correspondence, notes and records of communication between the Department of Transport, Tourism And Sport (DTTAS ) and Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs (DAHRRGA) concerning the introduction of legislation to allow for hedgerow management and upland burning at certain times within the current closed period as detailed in Section 40 Wildlife Act.
II. All notes, records, briefings and advice prepared for consideration by the Department and Minister Shane Ross, Minister of Transport, Tourism And Sport concerning the introduction of legislation to allow for hedgerow management and upland burning at certain times within the current closed period as detailed in Section 40 Wildlife Act.”
The Department refused the appellant’s AIE request on 23 March 2017 on the grounds that article 3(2) of the AIE Regulations excludes bodies “when acting in a judicial or legislative capacity” from the definition of “public authority” set down in article 3(1) of the AIE Regulations. The Department stated that as the AIE request related to legislation - the Heritage Bill 2016 - which is currently going through the Houses of the Oireachtas the AIE Regulations did not apply.
On 31 March 2017, the Department received a request from the appellant for an internal review of its AIE request. The appellant did not receive a response to that internal review request. Thus, a right of appeal to me arose on 30 May 2017. The appellant appealed to this Office on 25 May 2017.
Under article 12(5) of the AIE Regulations, my role is to review the Department’s decision and to affirm, annul or vary it. As no internal review decision was issued by the Department, the decision under review is the Department’s original decision of 23 March 2017.
In conducting my review I took account of the correspondence and submissions made by the appellant and the Department. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered. I also had regard to:
Relevant AIE provisions
Article 3(1) sets down a definition of “public authority” for the purposes of the AIE Regulations. That definition refers to “public authority” as including:
Article 3(2) provides that “[n]otwithstanding anything in sub-article (1), “public authority” does not include any body when acting in a judicial or legislative capacity.”
The public authority’s position
The Department stated that it is excluded from the scope of the AIE Regulations under article 3(2) of the AIE Regulations as it is a body acting in a legislative capacity. In support of this it cited paragraph 5.7 of the Minister’s Guidance, it went on to state that the Minister’s Guidance makes it clear that “the AIE Regulations do not apply to public authorities when acting in a legislative capacity”.
In relation to part one of the AIE request, the Department stated that the AIE request requested records of communications between the Department and the then Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs (DAHRRGA) (now the Department of Culture, Heritage and the Gaeltacht (DCHG)) on the preparation of legislation going through the Houses of the Oireachtas – the Heritage Bill 2016. It explained that contact between the two Departments concerned the Department’s legislative code specifically section 70 of the Roads Act 1993. The Department stated that the consultation between the two Departments is an essential part of the legislative process and that without this “it would not be possible to have a coherent and co-ordinated national framework of legislation”. The Department continued that “it is in this regard that the Department was acting in a legislative capacity through its communication with DAHRRGA (now DCHG) on the formulation and drafting of legislation”. The Department stated that it does not hold any additional records relating to part two of the AIE request.
The appellant’s position
The appellant, in its request to the Department for an internal review, stated that as the Minister for Transport, Tourism and Sport is not bringing forward the legislation mentioned in the Heritage Bill 2016 neither the Minister nor the Department are acting in a legislative capacity. It argued that the release of the information would be in the public interest.
Analysis of the justification of the Department’s decision
As noted above, the Department refused the appellant’s request on the grounds that it is excluded from the scope of the AIE Regulations on the basis that it was acting in a legislative capacity under article 3(2) of the AIE Regulations. In my analysis I examined the meaning of article 3(2) of the AIE Regulations, in particular the meaning of ‘when acting in a legislative capacity’.
Article 3(2) of the AIE Regulations
Aarhus Convention
The AIE Directive, which the AIE Regulations transposed, has its origins in the Aarhus Convention. Article 2(2) of the Aarhus Convention defines “public authority” for the purposes of the Convention. The second sentence of Article 2(2) of the Aarhus Convention provides that “[t]his definition does not include bodies or institutions acting in a judicial or legislative capacity”.
AIE Directive
Article 2(2) of the AIE Directive defines “public authority” for the purposes of the Directive. The first sentence of the second paragraph of Article 2(2) of the AIE Directive provides that “Member States may provide that [the definition of “public authority”] shall not include bodies or institutions when acting in a judicial or legislative capacity.”
AIE Regulations
In accordance with the option given to Member States in the first sentence of the second paragraph of Article 2(2) of the AIE Directive, Ireland opted to exclude bodies when acting in a legislative capacity from the definition of public authority when transposing the AIE Directive into national law. Article 3(2) of the AIE Regulations provides that “[n]otwithstanding anything in sub-article (1), “public authority” does not include any body when acting in a judicial or legislative capacity.”
The Minister’s Guidance at paragraph 5.7 states that:
“Article 3(2) is very important and clarifies that the AIE Regulations will not apply to a public authority "when acting in a judicial or legislative capacity". … It is considered that “legislative capacity” will comprehend a public authority when involved in the preparation of legislative proposals for the Oireachtas, e.g. Government Departments and the Attorney General’s Office, and the preparation and making of secondary legislation, e.g. regulations, orders and bye-laws whether made by central Government or other public authorities.”
In summary, the Aarhus Convention excludes bodies or institutions acting in a judicial or legislative capacity from the definition of public authority. The AIE Directive gives Member States the option to exclude from the definition of public authority bodies or institutions “when acting in a … legislative capacity”. Ireland opted to exclude bodies “when acting in a judicial or legislative capacity” from the definition of public authority in article 3(2) of the AIE Regulations and thus from the scope of the AIE Regulations.
When acting in a legislative capacity
The phrase ‘when acting in a legislative capacity’ is not defined in the AIE Regulations, the Aarhus Convention, or the AIE Directive. I note that the Minister’s Guidance states that “legislative capacity” will include a public authority such as Government Departments when involved in the preparation of legislative proposals for the Oireachtas. I should make it clear here that while I have had regard to the Minister's Guidance, I do not necessarily agree in full with the position in the relevant paragraph.
Court of Justice of the European Union
In response to a preliminary reference from the German Federal Administrative Court, the Court of Justice of the European Union (CJEU) considered the meaning of the first sentence of the second paragraph of Article 2(2) of the AIE Directive in C-204/09 Flachglas Torgau GmbH v. Federal Republic of Germany (14 February 2012) (Flachglas). In that case Flachglas requested from the Federal Ministry for the Environment, Protection of Nature and Reactor Safety (Federal Ministry), among other items, information relating to the legislative process in which the law concerning Germany’s national allocation plan for greenhouse gas emission licences during 2005 to 2007 was adopted. In particular, it requested access to internal memoranda and comments produced by the Ministry and correspondence, including electronic mail, between it and the Federal Office for the Environment. The Federal Ministry refused Flachglas’s request for access to the requested information concerning the adoption of the law on the basis that the information was exempt as it related to the legislative process. The CJEU held that the first sentence of the second paragraph of Article 2(2) of the AIE Directive:
“must be interpreted as meaning that the option given to Member States by that provision of not regarding ‘bodies or institutions acting in a … legislative capacity’ as public authorities may be applied to ministries to the extent that they participate in the legislative process, in particular by tabling draft laws or giving opinions”.
The CJEU stated at paragraph 43 that the purpose of that option is to allow Member States to set down rules to ensure the smooth running of the legislative process, taking into account the fact, that in various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process. The Court applied a functional interpretation to the phrase acting in a legislative. In doing so, it stated at paragraph 49 that:
“ministries which, pursuant to national law, are responsible for tabling draft laws, presenting them to Parliament and participating in the legislative process, in particular by formulating opinions, can be considered to fall within that definition [of “bodies or institutions acting in a … legislative capacity], within the meaning of and for the application of Directive 2003/4.”
The CJEU went on to hold that the option given to Member States of not regarding bodies or institutions acting in a legislative capacity as public authorities “can no longer be exercised where the legislative process in question has ended”. The Court stated at paragraph 55 that while making environmental information available during the legislative process could interfere with the smooth running of that process that is no longer the case when the process concludes.
Legislative process in Ireland
In order to determine whether the Department is acting in a legislative capacity within the meaning of article 3(2) of the AIE Regulations, I considered the legislative process in Ireland and what role the Department plays in that process.
Article 15.2.1° of the Constitution of Ireland (Constitution) provides that the “sole and exclusive power of making laws for the state is hereby vested in the Oireachtas”. The Oireachtas is comprised of the President and the two Houses of the Oireachtas (the Dáil and the Seanad). The standing orders for the Dáil and the Seanad set down the procedure for the passage of legislation through the Houses of the Oireachtas. The standing orders for the Dáil and the Seanad prescribe the five stages a Bill (draft law) must go through in each House: the first stage (initiation), second stage, third (committee) stage, fourth (report) stage and final stage. Any member of the Dáil may seek leave to introduce a Bill and any three members of the Seanad may sponsor a Bill. Each stage gives the members of the Houses an opportunity to discuss, debate and make amendments to a Bill before it is passed. The Bill, discussions and debates on it and amendments made to it are available to the public. When a Bill has passed all stages it is presented to the President for signature and promulgation by him or her as law in accordance with Article 25.4.1° of the Constitution.
Role of Departments in the legislative process
Article 28.2 of the Constitution provides that “the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government”. Under Article 28.4.2° of the Constitution the Government is “collectively responsible” for the Departments of State. Article 28.12 of the Constitution provides that the organisation and distribution of business shall be regulated in accordance with law among Departments of State and that Government Ministers are “in charge of” of those Departments.
The primary piece of legislation governing the Departments of State is the Ministers and Secretaries Act 1924 (as amended) (Ministers and Secretaries Act). In essence, under the Ministers and Secretaries Act Government business is assigned to Ministers and Departments who are responsible for the matters falling under their portfolio. Section 1 of the Ministers and Secretaries Act establishes a number of Departments of State amongst which the administration and business of the public services of the State shall be distributed and the powers, duties and functions of each Department shall be assigned to and administered by the Minister. Under section 6(3) of the Ministers and Secretaries (Amendment) Act 1939 whenever any power, duty, or function is vested in the Minister by statute the administration and business connected with the exercise, performance, or execution of such power, duty, or function is deemed to be have been allocated to the Minister’s Department. The then Department of Transport and Power (now the Department of Transport, Tourism and Sport) was established by section 2 of the Ministers and Secretaries (Amendment) Act 1959.
Under the Ministers and Secretaries Act, and in accordance with the Constitution, the administration of the Government is carried out by Departments. The procedure for preparing Government Bills is described in chapter 4 of the ‘Cabinet Handbook’ (December 2006) by the Department of the Taoiseach. In summary, when preparing a Bill, a Department prepares a General Scheme of the Bill and a Memorandum to Government. Once the Government has approved the General Scheme of the Bill the promoting Department arranges for the drafting of the Bill. Consultations may take place with outside organisations when the Bill is being drafted. After the Government has approved the final text of the Bill the promoting Department arranges for its initiation in one of the Houses of the Oireachtas. In practice the Bill is initiated by the Minister who is the head of the Department or his or her representative. Accordingly, I am satisfied that Departments are responsible for tabling draft laws, presenting them to the Oireachtas and participating in the legislative process. I am also satisfied that a Government Department, by formulating and giving opinions on a Bill going through the Houses of the Oireachtas, is participating in the legislative process and thus is acting in a legislative capacity within the meaning of article 3(2) of the AIE Regulations.
Is the Department of Transport, Tourism and Sport acting in a legislative capacity?
The Department stated that the consultation between the two Departments is an essential part of the legislative process. The CJEU in Flachglas stated that the purpose of allowing Member States the option of excluding bodies acting in a legislative capacity is to ensure the smooth running of the legislative process. I accept that the consultation between the two Departments on a Bill that is going through the Houses of the Oireachtas is an essential part of the legislative process. The Department provided me with a copy of 15 records which fall under the scope of the appellant’s AIE request. I examined the content of the records, I accept that the records relate to the Department’s consultative role to the DCHG on provisions in the Heritage Bill 2016 relating to the Department’s legislative code specifically section 70 of the Roads Act 1993. Accordingly, I am satisfied that the Department was participating in the legislative process through formulating and giving opinions on the Heritage Bill 2016 which was going through the Houses of the Oireachtas. As a result, I accept the Department was acting in a legislative capacity within the meaning of article 3(2) of the AIE Regulations and thus is not a public authority for the purposes of the AIE Regulations. The Heritage Bill 2016 is currently going through the Houses of the Oireachtas; as a result, I consider that the Department is still acting in a legislative capacity and thus is not a public authority for the purposes of the AIE Regulations. However, in accordance with the CJEU in Flachglas, I note that once the legislative process concludes i.e. when the Heritage Bill 2016 has been promulgated as law by the President, the Department will be a public authority within the meaning of the definition in article 3(1) of the AIE Regulations at which time the appellant, if it so wishes, can make a new AIE request for the information. This is without prejudice to the use by the Department of any of the grounds for refusing access to information set down in the AIE Regulations.
For the reasons outlined above, I find that the Department is acting in a legislative capacity within the meaning of article 3(2) of the AIE Regulations and is therefore excluded from the definition of public authority in article 3(1) of the AIE Regulations. As a result, the Department is not a public authority for the purposes of the AIE Regulations and is outside the scope of the AIE Regulations. As the Department is not a public authority for the purposes of the AIE Regulations it would not be appropriate for me to require it to make the environmental information available to the appellant. Neither do the public interest arguments put forward by the appellant fall to be considered.
Having reviewed the Department’s decision, I find that it was justified in refusing the request for access to the information as it is acting in a legislative capacity within the meaning of article 3(2) of the AIE Regulations. Accordingly, I uphold the Department’s decision in full.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall, Commissioner for Environmental Information