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EU Law on Prince Charles’s letters

The “Guardian” campaign  to obtain access to letters by Prince Charles to the Government has taken a major step forward with a Supreme Court ruling last week that effectively ended the confidentiality of what have been called “advocacy letters” from the Prince. Click here to read the article. These letters put forward his point  of view on various topics. The Court’s ruling had two aspects, one of which concerned EU law. This note is about only that aspect.
One of the topics on which the Prince made his views known was the environment. On this, the Court stated:  “Precisely how much of the advocacy correspondence is “environmental” for the purposes of the EIR [Environmental Information Regulation] is not known to Mr Evans [Rob Evans of the Guardian] or to this court. This is a matter which was dealt with by the UT [Upper Tribunal for administrative matters] in closed session. But it is common ground that significant parts of the correspondence consisted of environmental information”. Then the Court went on to rule that, apart from any purely national law issues, letters that did contain “environmental information” had to be disclosed under  the UK EIR (Environmental Information Regulation) implementing the European Directive on public access to environmental information. This Directive in turn implements the international obligations of the EU and its member states under the  Aarhus Convention on Access to Information, Public Participation in Decision-making and access to Justice in Environmental Matters.
The definition of “environmental  information” in the UK EIR  comes from the Directive and the Directive definition comes from the Aarhus Convention:
                ‘3. “Environmental information” means any information in written, visual aural, electronic or any other material form on:
(a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;
(c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected y the state of the elements of the environment or, through these elements’
It is not obvious why any of the Prince’s advocacy was thought by the UK Upper Tribunal for administrative matters to fall within the  definition  of “environmental information” or why there was “common ground”. Evidence put forward by Prince Charles in support of his environmental opinions might conceivably fall within one or more of  (a) to (c) in the article 3 list. But it does not follow that personal opinions advocated by him necessarily fall into that category too. Absent  a  ruling in open court on the application to the Prince’s letters of the definition, we cannot  know what, if any, of their content is truly in law “environmental information”.  Only if and to the extent that it is, can the alleged public right to know be based on the EU Directive. And only if a legal or administrative issue has an EU basis can any issue arise under the EU Charter of Fundamental Rights, which is limited to such issues.

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