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Freedom of Information (Scotland) Act 2002

Section 62 – Power to make provision relating to environmental information

149.This section provides that the Scottish Ministers may make regulations to implement the “Aarhus Convention” – a United Nations Economic Commission for Europe (UNECE) Convention, which the UK (and all other European Union Member States) signed at Aarhus in Denmark in 1998.

150.The Convention deals with access to information, public participation in decision-making and access to justice in environmental matters. As the Convention goes further than the existing Environmental Information Regulations (EIRs) in some areas, and these are not sufficient to enable the United Kingdom to meet the requirements of the Convention, new regulations must be made. The Convention is not an EC instrument, and therefore a new power to make regulations is required (the power to make regulations under section 2(2) of the European Community Act 1972 cannot be utilised). It should be noted that these regulations will implement only those provisions of the Aarhus Convention which relate to access to environmental information.

151.This section will allow the creation of a revised free-standing access regime for environmental information, replacing the current EIRs (the Environmental Information Regulations 1992 (SI 1992/3240), as amended by the Environmental Information (Amendment) Regulations 1998 (SI 1998/1447)). The current Regulations – which will be revoked on the coming into force of the revised regime – implement Directive 90/313/EEC on the Freedom of Access to Information in the Environment.

152.Section 62(3) gives the Scottish Ministers power to make regulations to implement those Articles of the Aarhus Convention which relate to the provision of access to environmental information. The regulations may include provisions for the purpose of dealing with matters arising from those Articles, or amendments to them. Section 62(4) permits the regulations to include provisions enabling charges to be made in connection with the disclosure of environmental information.

153.Section 62(4) also permits certain provisions of the Act to be applied to the regulations, with modifications. The regulations may also make provision for a code of practice to be issued by the Scottish Ministers to apply to any authority, persons or body (as defined in the Convention) subject to the regulations, and for the application of the Scottish Information Commissioner’s powers under sections 43 and 44, as modified if necessary. The regulations may also apply, with modifications, Part 4 of the Act (“Enforcement”), so that the Scottish Information Commissioner will be able to enforce the regulations. The regulations may also make provision for any transitional or consequential provisions that are appropriate. Such regulations will be subject to negative resolution.

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