1. INTRODUCTION
It is increasingly recognized by states that the accountability of public authorities is a key component of environmental protection efforts. The development of environmental law – as enshrined by the Rio Declaration on Environment and DevelopmentFootnote 1 and the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)Footnote 2 – has moved away from traditional ‘command and control’ legislation towards public participation as a means of engaging civil society as environmental regulators.Footnote 3 In particular, information disclosure provisions can help to minimize the information asymmetry between the state and its citizens. In so doing, individuals are empowered in their role as environmental stewards, able to participate effectively in environmental decision-making proceduresFootnote 4 and to exert ‘bottom-up’ pressure on the state and private entities in their role as consumers and investors.Footnote 5
A key player in these developments is the European Union (EU). While states such as Sweden, Finland and the United States (US) were the first to guarantee the general right of access to information,Footnote 6 which has been replicated across the globe,Footnote 7 it was the EU that first recognized the right of access to environmental information in 1990 through Directive 90/313/EEC on the Freedom of Access to Information on the Environment.Footnote 8 The EU continued to play a vital role in the negotiations leading to the creation of the Aarhus Convention, which is the keystone instrument that enshrines the right of access to environmental information at the international level. Based on Western liberal-democratic values and described as a regional convention with global scope,Footnote 9 the Aarhus Convention obliges states to guarantee the right of access to environmental information held by public authorities, subject to various exceptions, by linking environmental and human rights.Footnote 10 The Convention’s procedural rights entrench the right of access to environmental information within states that are parties to the Convention, and have had a significant influence on how states conceptualize the right in their respective environmental information regimes.
It is under the auspices of the Aarhus Convention that both the United Kingdom (UK) and China have guaranteed the right of access to environmental information. However, the relationship between the Convention and these two jurisdictions differs greatly. The UK is a party to the Aarhus Convention and is obliged as a matter of international law to guarantee the procedural rights enshrined therein. This is further entrenched through the UK’s (current) membership of the EU, which imposes the obligations of the Aarhus Convention through its party status to the Convention and through Directive 2003/4/EC on Public Access to Environmental Information.Footnote 11 There is added complexity in how the UK complies with its obligations under the Aarhus Convention and Directive 2003/4/EC as a result of the variations between the different parts of the UK. The Environmental Information Regulations 2004 (EIR)Footnote 12 impose obligations on public authorities to disclose environmental information on request in England, Wales and Northern Ireland. Public authorities in Scotland are obliged to comply with the Environmental Information (Scotland) Regulations 2004,Footnote 13 the provisions of which are substantively identical to those of the EIR. However, while both sets of instruments are substantively identical, the context in which they operate is not. This can be seen in the provision of public utilities, in particular water and sewerage services, which is privatized in England and Wales but not in Scotland or Northern Ireland. This is significant, as these differences can lead to the scope of the regulations being different in each constituent country of the UK, depending on the degree of control the relevant country has over public utilities. In order to recognize the impact of these differences and provide a coherent comparative analysis, this article will focus on the EIR and their implementation in England and Wales.Footnote 14
In contrast to the UK, China is not a party to the Aarhus Convention and is not bound to implement the Convention’s approach in guaranteeing the right. Nevertheless, China has broadly adopted the principles of the Aarhus Convention in guaranteeing the right of access to environmental informationFootnote 15 and there is ongoing academic debate on whether China should become a party to the Convention.Footnote 16 Thus, regardless of whether states have acceded to the Convention or merely draw inspiration from it, the overarching framework provided by the Aarhus Convention informs states throughout the world on how best to guarantee the right of access to environmental information.Footnote 17
As will be demonstrated below, there are shortcomings in the rules governing access to environmental information in both England and China when measured against the standards in the Aarhus Convention. These shortcomings have a significant impact on how the right operates in practice. This article focuses on two particular aspects of the environmental information regimes in England and China that lead to deficiencies in the application of the right. Firstly, it discusses the definitional implications of ‘public authority’ and ‘government department’; secondly, it reviews the circumstances in which public authorities may withhold information from disclosure. The article contends that legal transplant theory can assist in remedying the observed shortcomings associated with these two aspects. Legal transplant theory helps to make sense of the nature of law and its connection with the needs of society,Footnote 18 and is appropriate for application in this context as it provides a lens through which to view legal reforms and gauge their likelihood of being successfully adopted.
This article seeks to highlight both the similarities and the differences between the two jurisdictions in how they approach selected aspects of the right of access to environmental information and their success in guaranteeing the right when judged against the standards of the Aarhus Convention. By highlighting the similarities and differences between the two jurisdictions and as against the Convention, the article aims to (a) identify the different approaches that England and China have adopted in the context of the normative framework created by the Aarhus Convention; and (b) explain how these approaches impact on the success or otherwise of guaranteeing the right. Additionally, the article uses the lens of legal transplant theory to analyze how the legal reforms of the selected environmental information regimes proposed in this article interact with the normative framework of the Aarhus Convention and with the conceptualizations of the right in both jurisdictions. There is scant application of legal transplant theory in this area. This article aims to fill the gap and provide insights into which aspects of the right should be treated as (i) essential for meeting the objectives of promoting environmental democratic values; or (ii) open to change to fit within the legal and political culture of a state.
The next section introduces legal transplant theory. It discusses the tenets of the theory and shows how it can be applied in the context of guaranteeing the right of access to environmental information in England and China. The following section identifies how England and China have guaranteed the right of access to environmental information, focusing on which bodies are subject to the environmental information regime and what information is exempt from disclosure. These aspects of the regime were selected because they best represent the differences between English and Chinese conceptualizations and approaches towards guaranteeing the right of access to environmental information. Legal reforms sourced from each jurisdiction are then proposed and the likelihood of the proposed transplants being successfully incorporated into the receiving legal system is explored. The article concludes that it is theoretically possible for England and China to look to each other as sources of legal reform to improve how the right is guaranteed, which would have a wider positive impact on environmental democracy. However, the article concedes that the cultural and political barriers between these states are likely to hinder the sourcing and adoption of the proposed transplants.
2. LEGAL TRANSPLANT THEORY
Law shows us many paradoxes. Perhaps the strangest of all is that, on the one hand, a people’s law can be regarded as being special to it, indeed a sign of that people’s identity … [Yet] on the other hand, legal transplants – the moving of a rule or a system of law from one country to another, or from one people to another – have been common since the earliest recorded history.Footnote 19
It is commonly accepted that the laws in a jurisdiction mirror the unique needs of that jurisdiction,Footnote 20 a theory referred to in this article as the ‘mirror theory’. Originating from the legal studies of Montesquieu, the mirror theory denotes the importance of society within the local lawmaking process and precludes the possibility of laws travelling between jurisdictions.Footnote 21 When viewing the law through this theoretical lens, a reasonable assumption is that because the specific needs of a society differ among states as a result of natural, political and legal factors, the laws of one jurisdiction cannot fit the different needs of another. However, as identified in the above quote, there is a flaw in Montesquieu’s theory. While laws should not easily travel between jurisdictions, there is evidence that ‘foreign’ laws have been used as sources of legal reform for various jurisdictions throughout history.Footnote 22 Additionally, modern academics have noted that this phenomenon is not restricted to the past: the exchange of laws between jurisdictions has increased in the 21st century.Footnote 23 Consequently, Montesquieu’s theory of law mirroring society does not fully explain how law operates in reality.
Alan Watson attempts to fill this gap through legal transplant theory. Pioneered in the 1970s,Footnote 24 legal transplant theory proposes that law does not reflect the needs of societyFootnote 25 because the law and the legal institutions of a jurisdiction are created by the ‘legal elite’.Footnote 26 The ‘legal elite’, Watson posits, constitutes a group trained in matters of law which, by virtue of that training, are more inclined to rely on legal authority in order to justify the legitimacy of their proposals for law reform.Footnote 27 Consequently, the laws of a state will tend to reflect the specific legal desires of the ‘legal elite’, partially severing the link between the law and the needs of society. As a result of this disconnect, jurisdictions are free to look beyond indigenous sources of law and source legal reforms from another jurisdiction, even if it holds different social or political values. Indeed, Watson describes this as the ‘most fertile source of development’Footnote 28 for legal systems because they are economically efficient,Footnote 29 allowing the ‘legal elite’ to build on the experience of the donor jurisdiction and prevent costly errors arising from the implementation of unsuitable laws.Footnote 30 Additionally, the desire to increase the legitimacy of the state at the domestic and international levels through incorporating internationally recognized legal norms into domestic lawFootnote 31 has been identified as a key reason for jurisdictions to look beyond their own borders for legal reforms. This is of particular importance in the context of the right of access to environmental information because the Aarhus Convention acts as the normative international instrument in this area. Any domestic environmental information regime which complies with the Convention is seen to be effectively implementing the right of access to environmental information.
However, the process of looking towards other jurisdictions to source legal reforms is easier said than done and raises a plethora of questions that the ‘legal elite’ must answer. Firstly, how will the jurisdiction source these reforms? Secondly, are the selected transplants likely to be successfully adopted? Thirdly, will there be unintended consequences? In addressing the first two questions, Watson identifies three conditions which must be met for the legal transplant to be adopted successfully: (i) the laws being transplanted must be accessible to the ‘legal elite’;Footnote 32 (ii) they must be respected or perceived as legitimate by the receiving society;Footnote 33 and (iii) they must not be inappropriate for the receiving society.Footnote 34 While these conditions indicate that a variety of factors affect whether legal transplants are successfully incorporated into the receiving legal system, a common theme is that they must not be contrary to the needs of society. This is similar to Montesquieu’s theory but differs in one important respect: the transplant need not perfectly reflect what society desires; it just needs to not be contrary to the values of the receiving society.
Leading from this, it must be asked why England and China would look towards each other as a potential source of legal reform, as they both differ significantly in terms of legal, cultural and political attributes. England, similar to other Western states, adopts a liberal-democratic view of state/citizen relations. This view, espoused by academics such as Bentham, emphasizes that the state holds information on behalf of the public interest and that it is necessary for citizens to hold the state to account to protect against abuses of power.Footnote 35 In contrast, China’s totalitarian rule under the Chinese Communist Party (CCP) is not based on liberal-democratic values,Footnote 36 but rather on Marxist doctrines of state/citizen relations.Footnote 37 Such a political position eschews the virtue of transparency and builds upon China’s Confucian tradition of secrecy in matters of governance.Footnote 38
However, it can be suggested that because both jurisdictions share a common desire to implement the right of access to environmental information, this gap is not an insurmountable obstacle to transplanting legal reforms. Indeed, under legal transplant theory these differences are a boon since the unfamiliar social views and legal procedures can offer previously unthought-of ideas that could not be conceived purely within the receiving jurisdiction’s legal system. Additional factors can also bridge the gap between the two jurisdictions. England’s party status to the Aarhus Convention, the prestige of England’s environmental information regime which has been praised by the Aarhus Convention Compliance Committee,Footnote 39 and the accessibility of English as a global languageFootnote 40 help to promote aspects of England’s EIR to China’s ‘legal elite’ in considering legal transplants. Conversely, as a state suffering from severe environmental degradation,Footnote 41 which only recently has guaranteed the right of access to environmental information, China is well placed to experiment with implementing the procedural rights enshrined in the Aarhus Convention. In this context, any legal innovations by China may be of interest to England, and thus can drive it to consider China as a source of legal reforms in accordance with legal transplant theory.
Finally, states may attach particular importance to the question of unintended consequences. These consequences are not merely the potential rejection of the proposed transplant. Legal transplants may also act to transform the legal system in which they have been transplanted, thereby altering characteristics of the receiving system to reflect the legal system of the donor state.Footnote 42 The transformative impact of legal transplants can be substantial, because they can subtly introduce legal principles into a jurisdiction that would normally dismiss such principles outright. This can be seen to some extent in China’s implementation of the right of access to environmental information, which has incorporated Western ideals of transparency into the traditionally closed system of Chinese governance. However, it must be noted that the receiving jurisdiction is not obliged to transplant the proposed reform in full: it can certainly amend the provisions of the original law to fit within its own legal system.Footnote 43 In doing so, it is possible for the receiving jurisdiction to minimize the transformative impact of the legal transplant.
3. APPLYING LEGAL TRANSPLANT THEORY TO THE ENVIRONMENTAL INFORMATION REGIMES IN ENGLAND AND CHINA
3.1. The Aarhus Convention and the Right of Access to Environmental Information in England and China
The Aarhus Convention, as the keystone of the right of access to environmental information, is vital to setting the minimum procedural standardsFootnote 44 required to effectively guarantee the right. Negotiated by the EU Member States and informed by the Rio Declaration on Environment and Development and Directive 90/313/EEC, the Aarhus Convention sets out the scope of the right,Footnote 45 secondary procedural rights relating to the request for environmental information,Footnote 46 and review procedures that must be available to applicants.Footnote 47 However, the Convention does not prescribe the procedures to guarantee these rights. This is an important design element of the Aarhus Convention: it is open for global accession and thus must accommodate diverse political and legal cultures found in the United Nations Economic Commission for Europe (UNECE) area and beyond.
Moreover, in addition to playing a vital role in the creation of the Aarhus Convention, the EU has an influential position in how England and China guarantee the right of access to environmental information. England, as a result of the UK’s (current) membership of the EU, is obliged to implement the provisions of Directive 2003/4/EC,Footnote 48 which transpose the obligations enshrined in the Aarhus Convention into EU law and is binding upon Member States. China is not bound to follow EU law, but the EU has established numerous programmes, such as the EU-China Environmental Governance Programme,Footnote 49 which act to promote the adoption of European principles underpinning environmental law into China’s legal system. In this way, the EU plays an influential role in how the right is guaranteed in these jurisdictions.
It is within the frameworks of the Aarhus Convention and the EU that England and China have created domestic regimes to guarantee the right of access to environmental information. In England, the right is implemented through the EIR regime and in China through the Regulations of the People’s Republic of China on Open Government Information 2007 (OGI)Footnote 50 and the Measures on Open Environmental Information (for Trial Implementation) 2007 (MOEI).Footnote 51 Both regimes have adopted the same overall structure: they each provide a right of access to environmental information held by the state, which is triggered when a request for information is submitted to a public authority. On receiving a request for environmental information the public authority is obliged to decide, subject to various procedural obligations, whether to disclose the requested information or whether to rely on an exemption and withhold disclosure. If the public authority decides to withhold the requested information, or if in reaching its decision it breaches procedural obligations, individuals can seek to have the decision reviewed and, if successful, avail themselves of the remedies provided by the review body.
While both regimes have adopted a similar structure to guarantee the right, there are significant differences in their regulatory frameworks. One difference is that the EIR regime operates in parallel with the UK Freedom of Information Act 2000 (FOIA), which is of national rather than EU origin and does not distinguish between environmental and other types of information. This arrangement is not present in China. Conversely, it has been suggested that the CCP’s reason for guaranteeing the right in China is to entrench its domestic legitimacy as the ruling partyFootnote 52 rather than to empower citizens in environmental protection efforts. This assertion arises from the implementation of China’s environmental information regime, which provides access to environmental information only when it portrays the CCP in a favourable lightFootnote 53 and attempts to minimize public engagement with state decision-making processes.Footnote 54 This differs from the underlying environmental democratic principles behind the Aarhus Convention which underpin the EIR regime in England. As such, it could act to undermine the transparency and environmental protection aims of the right itself in the Chinese context.
These differences are important because they influence the content of the domestic environmental information regimes in both jurisdictions. Indeed, the differences between jurisdictions and their laws shape the legal transplant process. Nonetheless, despite these differences it is important to note that both jurisdictions adopt the structure of the Aarhus Convention in establishing a framework for their environmental information regimes. This is important from the perspective of legal transplant theory, as the similarities in the structure of both regimes make it easier for the proposed legal transplants to be incorporated without being substantially altered.
3.2. Public Authorities and Government Departments: The Scope of the Right of Access to Environmental Information
The definition of ‘public authority’ is the first aspect of the English and Chinese environmental information regimes that requires analysis. This is essential for delineating the scope of the right of access to environmental information, as it is only information held by public authorities that is accessible under the Convention.
Under the Aarhus Convention and Directive 2003/4/EC, a public authority is defined as:
(a) Government at national, regional and other level;
(b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;
(c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above;
(d) The institutions of any regional economic integration organization referred to in article 17 which is a Party to this Convention.
This definition does not include bodies or institutions acting in a judicial or legislative capacity.Footnote 55
This definition is broad and covers all state bodies, not merely those related to the environment,Footnote 56 which ensures that a wide range of interactions between the state and the public are covered by the obligations.
In England, the provisions in the EIR that define ‘public authorities’ closely resemble the text of the Aarhus Convention and Directive 2003/4/EC. Under the EIR regime, four groups of bodies have been defined as public authorities: (i) government departments;Footnote 57 (ii) any public authority listed under Schedule 1 of the FOIA;Footnote 58 (iii) any bodies or persons carrying out functions of a public administration;Footnote 59 and (iv) any bodies or persons under the control of a public authority that has public responsibilities, exercises functions of a public nature or provides public services relating to the environment.Footnote 60 Additionally, the EIR specifically exclude public authorities acting in a judicial or legislative capacityFootnote 61 and the Houses of Parliament if their inclusion would infringe House privileges.Footnote 62
At first glance, the definition of ‘public authority’ in the EIR is compliant with the obligations imposed by the Aarhus Convention and Directive 2003/4/EC, as all government departments, not merely those with environmental remits, are covered by the EIR. However, this initial impression does not reflect the issues surrounding private entities that provide public services in England. The Court of Justice of the European Union (CJEU) ruled in Fish Legal and Emily Shirley Footnote 63 that the appropriate approach in determining whether a body is a public authority for the purpose of the EIR is to analyze whether the body in question is ‘vested … with special powers’ beyond those granted by the normal operation of private law. The CJEU also held that, in determining whether a private entity is under the control of a public authority, the Aarhus Convention and Directive 2003/4/EC require only that the entity in question does not perform its functions ‘in a genuinely autonomous manner’.Footnote 64 While this broadens the definition of ‘public authority’ in England to match the breadth of the Aarhus Convention and Directive 2003/4/EC, a degree of ambiguity still exists within the definition. As Reid has noted, the Upper Tribunal’s application of the CJEU ruling left open the question of whether an entity requires a range of ‘special powers’ to be defined as a public authority or whether a single ‘special power’ suffices.Footnote 65 This is problematic, as such bodies can argue that a single ‘special power’ does not meet the ‘special powers’ test set out by the CJEU. Consequently, this can obfuscate the true scope of the EIR regime and the right of access to environmental information, and may confuse potential applicants in determinations of whether they can submit requests for environmental information to private bodies that have only one ‘special power’.
In stark contrast to the position in England, China does not encounter this issue of ambiguity in defining government departments for the purpose of its environmental information regime. Under the OGI and the MOEI, ‘departments of the State Council, local people’s governments at all levels and departments under local people’s governments at the county level or above’,Footnote 66 including Environmental Protection Bureaus,Footnote 67 are within the remit of the regime. This definition is broad, covering a wide range of executive bodies and, crucially, bodies with delegated powers to manage public functions.Footnote 68 Additionally, all public enterprises and institutions that make or obtain government information while providing public services are encapsulated in this definition.Footnote 69 This breadth is possible because of the greater role that the state plays in providing public utilities and in public–private partnerships.Footnote 70 Without a socialist philosophy underpinning the supply of national utilities, such a broad definition is difficult to implement in practice. This approach is particularly interesting when compared with the scope of the Aarhus Convention: the breadth of the OGI and MOEI regime broadly matches this scope despite the Convention itself operating under a ‘market-liberal’ economic modelFootnote 71 rather than one informed by Marxist socialist values.
Notwithstanding this positive aspect of the Chinese environmental information regime, a critical problem is that the CCP itself is not within the remit of the regime, an issue which is unique to China. The Aarhus Convention and England also exclude political parties on the basis that they are directly accountable through democratic elections;Footnote 72 however, China, which does not utilize Western forms of democratic governance, does not have this degree of accountability. Of more concern, the CCP is China’s sole political party, so it effectively exercises complete control over the state executive departmentsFootnote 73 and promulgates policies that are applied at the local administrative level.Footnote 74 This degree of control is not exercised by political parties in other jurisdictions. As a result of the CCP’s exclusion from the OGI and MOEI regime, large portions of the ‘real’ decision-making processes in China are hidden from public scrutiny.Footnote 75 This position deviates from the Aarhus Convention, which covers bodies with this degree of executive powerFootnote 76 and would encapsulate the CCP if China were to ratify the Convention.Footnote 77 Such a position is obviously problematic because it provides only a diluted form of transparency, which insulates the CCP and undermines the environmental protection aims of the right and the Aarhus Convention. As such, the shortcomings in the Chinese regime impact upon the right of access to environmental information by, at least, hindering the effective implementation of the right in the broad scope envisioned by the Aarhus Convention or, at worst, rendering it illusory.
However, the analysis also indicates various parallels between the Chinese and English regimes which, in turn, could act as sources of inspiration for legal transplants. England could remedy the ambiguities in defining private entities that provide public services as public authorities by looking to the broad definition used in China, which encapsulates all entities performing public functions. This would eliminate the uncertainty in determining whether a private entity that provides a public service is, for the purposes of the EIR, a public authority. Moreover, it could do so without requiring applicants, who generally do not have legal training, to apply the ‘special powers’ test. This makes it easier for applicants to submit requests under the regime and broadens the accessibility of the right. However, in practice, adopting this transplant may be difficult because England lacks the degree of state control that China has over the provision of public utilities,Footnote 78 which makes such a broad definition possible. Notwithstanding this potential obstacle, it must be noted that the Chinese definition of government departments matches the broad scope of the Aarhus Convention whereby the structure of public utilities does not absolve the state of its obligation to provide access to environmental information.Footnote 79 The ideological convergence between the Aarhus Convention and Chinese law adds a degree of legitimacy to the Chinese provisions, and may act to surmount the difficulties raised by the different structures of public utilities and make the proposed transplant more feasible.
Conversely it would also be difficult for China to look to and adopt a specific provision in the English EIR regime as a means of legal reform. This is not because of the text of the OGI and the MOEI, which matches the scope of the Aarhus Convention. Rather, it is how the provisions are applied in practice, which shields the CCP in its role as the executive and breaches the spirit of the Convention’s provisions. This is not to say that China cannot look towards England for inspiration; rather, it must look towards the spirit of transparency woven through the provisions of the EIR instead of focusing on a specific provision. The current Chinese regime clearly does not deliver on the promise of transparency because it hides large portions of the CCP’s decision-making processes from public scrutiny. Abolishing this exclusion, while not strictly following the text of the Aarhus Convention and the EIR, would follow the spirit of these instruments and harness the right to information.
Naturally it is debatable whether the CCP, acting as the ‘legal elite’, would ever consider this transplant. On the one hand, the CCP may have implemented the right of access to environmental information simply to shore up its domestic legitimacy. By providing a diluted form of transparency that excludes itself, the CCP simultaneously addresses some transparency concerns while maintaining control over the flow of information between the state and Chinese citizens. On the other hand, guaranteeing the right of access to environmental information normatively erodes the CCP’s control of information. The international influence of the Aarhus Convention and the EU, alongside the example set by England, may pressure the introduction of further reforms. Additionally, since Chinese citizens are now more likely to take action in order to hold the state to account,Footnote 80 the introduction of the OGI and MOEI regime can be said to have precipitated a cultural change as well. This cultural shift may act to push the CCP into adopting this proposed transplant, despite this counteracting its interests as China’s ‘legal elite’.
3.3. Exceptions to and Exemptions from the Right of Access to Environmental Information in England and China
A key element of the Aarhus Convention, Directive 2003/4/EC, and the domestic environmental information regimes of England and China is the ability of public authorities to refuse requests for access in certain circumstances. This is important because, while states do hold information in the public interest, public authorities need to be able to withhold sensitive information that may cause harm if disclosed. At the international level, the Aarhus Convention sets out two categories of information that are exempt from the obligation of disclosure on request. The first category is general in nature and concerns whether the authority holds the information;Footnote 81 whether the information is in the course of completion or constitutes an internal communication;Footnote 82 and whether the request is ‘manifestly unreasonable’ or too general.Footnote 83 The second category protects a range of specific interests that can be adversely affected by the disclosure of sensitive information. These interests are broad, ranging from international relations, national security, public security,Footnote 84 and the privacy rights of individuals.Footnote 85 Requests for environmental information can also be refused under this category if it relates to confidentiality of commercial or industrial information, when such protection is granted by law,Footnote 86 and if disclosure of the requested information would impair environmental protection efforts.Footnote 87 Directive 2003/4/EC follows a similar division of exceptions and protects an identical set of interests.Footnote 88
In addition to setting the scope of the exceptions themselves, the Aarhus Convention and Directive 2003/4/EC place limits on how they can be used. Under both instruments, public authorities are obliged to interpret exceptions restrictively and must disclose the information if the public interest in withholding the information from disclosure is outweighed by the public interest in having the requested information released.Footnote 89 Furthermore, the exceptions operate under a presumption of disclosure,Footnote 90 which further increases the likelihood of the requested environmental information being disclosed. These conditions prevent public authorities from unduly withholding sensitive information to hide wrongdoing, and play an important role in ensuring that the right of access to environmental information is effectively guaranteed.
In implementing the exceptions enshrined in the Aarhus Convention, England has directly transposed the text of the Convention and Directive 2003/4/EC into the EIR regime.Footnote 91 The interests protected by the EIRFootnote 92 mirror those found in these instruments. The EIR exceptions also operate under a presumption of disclosureFootnote 93 similar to that articulated in the Aarhus Convention and Directive 2003/4/EC. This presumption works alongside the public interest test, which states that a refusal based on one of the exceptions can be overruled if it is in the public interest for the requested information to be disclosed.Footnote 94 The public interest test acts as an additional safeguard in the public authority’s determination of whether to disclose or withhold the requested information, where the public authority must weigh the considerations for disclosing and withholding the requested information.Footnote 95 In applying the public interest test, the public authority can take into account the promotion of participation in environmental matters; the free exchange of views and a greater awareness of environmental issues.Footnote 96 Additionally, public authorities can aggregate the weight of the exceptions in deciding whether or not to disclose the requested environmental information.Footnote 97 While this has the potential to undermine the restrictive interpretation of the exceptions promoted by the Aarhus Convention,Footnote 98 in practice overlapping interests are discounted from the aggregation processFootnote 99 and the general approach of considering the weight each individual interest should be accordedFootnote 100 limits the impact of this power. In obliging public authorities to follow these steps, the EIR regime is predisposed towards disclosing the requested information, in accordance with the aims of the Aarhus Convention. This predisposition is arguably to be expected, considering the shared Western liberal background of the UK and the Aarhus Convention.
However, despite strict adherence to the text of the Convention, England has had mixed success to date in effectively implementing the exceptions. For example, in applying the exception relating to international relations, defence, national security or public safety,Footnote 101 the EIR grant public authorities the discretion to neither confirm nor deny holding the information when responding to a request for access.Footnote 102 This is justified on the basis that, in certain instances, even revealing the existence of the requested information is akin to disclosing it and can have a negative impact on the public interest. Notwithstanding the strength of this justification, the power to neither confirm nor deny is not mentioned in the Aarhus Convention or Directive 2003/4/EC and, in fact, contradicts the obligation to give reasons for refusals.Footnote 103 The English approach breaches both the letter and spirit of the Aarhus Convention because, if such a response is issued by the public authority, the applicant will not know the basis for the refusal. Consequently, the applicant will be unable to make an informed decision as to the prospects of having the decision reviewed, which undermines the ability to enforce the right of access to environmental information.
In addition to this, implementation of the exception relating to the secrecy of commercial and industrial information has been problematic. Under the provisions of the EIR, information relating to commercial or trade secrets may be withheld from disclosure if it protects a legitimate economic interest and the information is designated as confidential by law.Footnote 104 The designation of confidentiality can be made through both statute and case law,Footnote 105 but if it is granted through case law then the information must be imparted to the public authority ‘in circumstances importing an obligation of confidence’.Footnote 106 This means that information that is created between a public authority and a private body does not fall within the exception because it cannot be said to have been ‘imparted’. This has a mixed impact on the right: while it ensures that public authorities are fully transparent in their dealings with private bodies, such bodies are less likely to share information with public authorities if there is a risk of the information being disclosed to the public. Additionally, private bodies are less likely to work alongside public authorities, thereby potentially hindering state-led environmental protection efforts in the private sector and conflicting with the overarching environmental aims of the Convention and of the right itself.
Unlike England, China has not directly transposed the text of the Aarhus Convention, yet the OGI and MOEI regime has adopted a similar structure to the Convention and the English EIR. The Chinese regime broadly protects the same interests as those listed in the Convention, albeit defined less precisely,Footnote 107 and includes the protection of state secrets,Footnote 108 commercial and trade secrets,Footnote 109 individual privacy,Footnote 110 and the ‘three securities and one stability’,Footnote 111 under which government departments are entitled to withhold information from disclosure if it endangers state security, public security or economic security.Footnote 112 Chinese government departments, in certain instances, must also undertake a public interest test, balancing the public interest in disclosure with the public interest in withholding the information. While not identical to the test seen in the Aarhus Convention, the Chinese public interest test also creates an additional stage in the government department’s determination of whether to disclose certain types of sensitive information. It is interesting to note that certain aspects of China’s OGI and MOEI regime have been more successful in matching the standards set by the Aarhus Convention than its English counterpart. One instance of this can be seen in its application of the state secret exemption, whereby government departments are obliged to provide a reason for the refusal to discloseFootnote 113 and cannot rely on discretionary power to neither confirm nor deny the existence of the requested information. Another example can be seen in how government departments do not require information to be ‘imparted’ in order to apply the exemption relating to commercial and trade secrets. These aspects of the OGI and MOEI regime are important, as they indicate a willingness from China to meet the standards of guaranteeing the right of access to environmental information as espoused by the Aarhus Convention.
However, while on the surface the Chinese environmental information regime complies with the obligations set by the Aarhus Convention, this is not the case in practice. The CCP has altered, or in some instances chosen not to adopt, certain elements of the Convention in order to achieve its own political goals. This can be seen in the CCP’s initial refusal to disclose a report on contaminated arable landFootnote 114 and the difficulties in accessing information on the disposal of hazardous waste.Footnote 115 Consequently, the right of access to environmental information is undermined and provides only a diluted form of transparency. This is evidenced in the range of information that may be withheld under the OGI and the MOEI, specifically the provision relating to the ‘three securities and one stability’. While these exemptions are uncontentious and feature in both the Aarhus Convention and England’s EIR regime, the provision also allows government departments to exempt information that threatens the ‘social stability’ of the state.Footnote 116 This exemption provides government departments with a wide degree of discretion, and what is considered to threaten ‘social stability’ can change depending on the priorities of the incumbent CCP leader.Footnote 117 As a result of this wide discretion and inclusion of ‘social stability’ as a protected interest, government departments have withheld information on environmental incidentsFootnote 118 and hindered environmental protest groups,Footnote 119 contrary to the aims of the Aarhus Convention. This is a consequence of the CCP’s totalitarian rule: in order to maintain the one-party system, the CCP needs to ensure that information that is potentially harmful to its domestic image is not disclosed, thereby necessitating the use of this exemption. It is telling that the environmental information regime in England, which uses a democratic system of governance, does not contain such an exemption.
The dilution of the right of access to environmental information can also be seen in other divergences between the Chinese environmental information regime and the Aarhus Convention. While China obliges government departments to provide the reason for withholding information,Footnote 120 there is no clear presumption of disclosure.Footnote 121 Additionally, government departments lack the discretion to disclose information in instances where there are persuasive, positive reasons to do so but the information is categorized as exempt from disclosure under the OGI and MOEI regime.Footnote 122 This provides government departments with a wide ability to justify a refusal to disclose environmental information, particularly in instances where such disclosure would embarrass the CCP.Footnote 123 As such, the CCP is able to maintain its stranglehold over the flow of information and prevent efforts to improve the transparency of its governance, contrary to the aims of the Aarhus Convention.
A similar divergence from the procedures of the Aarhus Convention can be seen also in the public interest test contained in the OGI and MOEI regime. Utilized in the exemptions relating to commercial and trade secrets and individual privacy, the OGI and the MOEI oblige state bodies to identify the public interest and analyze the impact that withholding the requested information would have.Footnote 124 While superficially similar, this test inverts the public interest test in the Aarhus ConventionFootnote 125 and the English EIR,Footnote 126 focusing on the harm that would be caused by non-disclosure as opposed to how the public interest is served by disclosure.Footnote 127 The Chinese public interest test has a negative impact on the right of access to environmental information as it predisposes state bodies to withhold information from disclosure. This is further exacerbated by the fact that the decision is generally based on whether the impact of non-disclosure would ‘far exceed’ the impact on other related interests,Footnote 128 which creates a high threshold to overcome.Footnote 129 Clearly, these practices diverge from the generally accepted standards set by the Convention, and it is here we can see how the transparency aims of the Aarhus Convention conflict with the domestic legitimacy concerns of the CCP. Consequently, this has a negative impact on the objectives of the right to promote environmental democracy and transparency in China.
In contemplating the shortcomings in the English and Chinese implementation of the exceptions to the right of access to environmental information, legal transplant theory can help to formulate proposals for legal reform. One shortcoming in the English regime is the requirement for information to be ‘imparted’ for the commercial and industrial information exception in the EIR to be applied, which stifles collaborative partnerships between the public and private sector. A potential transplant would involve England following the example of China and abolish the requirement to ‘impart information’. China, which has no such requirement, has seen an increase in such partnershipsFootnote 130 and it is plausible that the low likelihood of commercially sensitive information being disclosed through such partnerships is a reason for this uptake. This increased uptake of public–private partnerships is to China’s benefit for two reasons: firstly, the economic savings generated by such partnershipsFootnote 131 can be redistributed to other projects, such as environmental protection efforts; and, secondly, the state can influence how private parties conduct business, redirecting them towards more environmentally friendly business practices. These benefits act to promote the overarching aims of the Aarhus Convention. England, therefore, has a strong incentive to consider adopting this transplant, despite it being sourced from an entirely different political and legal model.
Another potential transplant relates to the public authorities’ ability to neither confirm nor deny the existence of information under the international relations, defence, national security and public safety exception. In contrast to England, China does not allow government bodies to refuse to provide the reason for refusing the requestFootnote 132 and, in this instance, is in full compliance with the standards set by the Aarhus Convention. England, therefore, may wish to follow the example set by China and abolish the power to neither confirm nor deny. In considering whether England could successfully adopt such a transplant, it must be noted that this particular transplant would match the Western democratic values that underlie both England and the Aarhus Convention, and indeed mirrors the obligation contained in the Convention. It is because of the procedural and ideological similarity between the Aarhus Convention and the Chinese provisions on this issue that this proposed transplant could be successfully adopted by England, thereby bringing its legal framework more closely into line with the requirements of the Convention.
China could also benefit from looking towards England to seek legal reforms. One particular set of transplants that China should consider incorporating into the OGI and MOEI regime is the English public interest test and the presumption of disclosure. By adopting these procedures in its environmental information regime, China would redress the discretionary powers available to government departments that tilt the request process towards non-disclosure. In turn, this would provide a more robust and effective means for citizens to utilize their right of access to environmental information. However, while these proposed transplants would help China to fully operationalize the right of access to environmental information, they also conflict with the CCP’s aim of maintaining control over the flow of information. To an extent, the two aims oppose each other and cannot coexist within the same legal system. This, however, ignores the ultimate objective of maintaining control over the flow of information: to continue to improve the legitimacy of the CCP at the domestic and international levels. The latter aim may ultimately trump the former and narrower aim of controlling the flow of information as a result of the change in how China’s citizens and Chinese environmental non-governmental organizations (NGOs) wish to be engaged in environmental protection efforts.Footnote 133 If the CCP cannot respond to this increased desire on the part of China’s citizens to access environmental information held by the state, it is probable that it will lose some of its domestic legitimacy as the ruling party. Indeed, it is likely that, if this transplant were proposed, it would be on the initiative of Chinese environmental NGOs, which, according to some commentators, play an increasingly important, albeit still limited, role in influencing decisions made by the CCP.Footnote 134 Additionally, in order to not be seen as acting contrary to the generally accepted norms of the Aarhus Convention, China may be pressured by the international community to adopt these transplants. Hence, despite the tension between certain aims of the CCP and the transplant, if proposed, China might consider adopting and incorporating it into its current environmental information regime.
It is particularly interesting to contrast this with any proposed transplant relating to the ‘social stability’ exemption contained in the OGI and MOEI regime. One clear point is that neither the Aarhus Convention nor the EIR regime contains such a broad exemption, and the use of this exemption in China provides more opportunity for Chinese government departments to withhold environmental information in comparison with their Western counterparts. As such, a potential reform that could be adopted by China is the abolition of the exemption. While this is not a transplant as defined by Watson – which requires that a law be placed into the receiving jurisdiction to be defined as a transplantFootnote 135 – the reform encounters the same clash of values as transplanting the presumption of disclosure and the public interest test. However, this provision in the OGI and MOEI regime can be distinguished from the previously identified issues. This distinction arises from the fact that the social stability exemption epitomizes a fundamental aspect of the Marxist form of socialist government.Footnote 136 This lends a degree of cultural significance to the exemption that is lacking in the procedural elements of the public interest test and presumption of disclosure. Consequently, because it is intrinsically connected to the political and social fabric of China, the CCP is unlikely to abolish the ‘social stability’ exemption to match the Western values enshrined in the Aarhus Convention, even if such a reform would better guarantee the right of access to environmental information.
4. CONCLUSION
The right of access to environmental information plays a key role in modern environmental governance. It empowers citizens to act as stewards for the environment, allowing them to participate actively in environmental decision-making procedures, act as enforcers for environmental regulations, and protest against environmental harm caused by the state. However, in order for the right to be effectively guaranteed it must be implemented with a set of procedural rights that govern which bodies are within the scope of the right and how public authorities process and determine requests for information. Enshrined in the Aarhus Convention, these procedural rights are vital to ensure that requests are processed in a way that furthers the environmental protection aims of the right. Both England and China, despite their political, social and legal differences, have looked towards the overarching framework of the Aarhus Convention in their attempt to effectively implement the right of access to environmental information.
Both jurisdictions have encountered shortcomings in fully guaranteeing the right in line with the obligations imposed by the Aarhus Convention. These shortcomings are not uniform between the jurisdictions. Reflecting the different social concerns and legal architecture used to implement the right, each jurisdiction has separate areas in which improvements are required and areas in which they have successfully incorporated the requirements of the Aarhus Convention into their domestic environmental information regime. It is the differences between the respective regimes that can act as reciprocal inspirations for legal reforms under legal transplant theory. The application of the theory between the two jurisdictions, and the conclusion that both jurisdictions can offer legal transplants that are likely to be successfully adopted by the other, raises a variety of interesting findings.
Firstly, regardless of the origin of the transplant and the cultural elements attached to it, if the proposed transplant matches the obligations enshrined in the Aarhus Convention it is more likely to be successfully adopted. This arises from the status of the Convention as the keystone legal instrument and the associated legitimacy that complying with it confers on states. This idea of legitimacy is identified as a driver by legal transplant theory, and may help to carry transplants across jurisdictions with vastly different legal and political systems and social values. Indeed, the legitimacy and associated prestige with complying with the normative values of the Aarhus Convention could drive England to adopt China’s approach to exempting commercial and industrial information from disclosure, despite their very different views on capitalism. This underlying idea of legitimacy can also drive China to adopt legal transplants from England, as far as they help China to comply with the normative values of the Aarhus Convention. However, as can be evidenced by the difficulty of reforming the ‘social stability’ exemption, the political culture of the CCP can act to hinder such transplants taking place. As such, the concept of legitimacy derived through the Aarhus Convention is not always enough to overcome domestic obstacles in promoting the adoption of legal transplants.
Secondly, China’s guarantee of the right of access to environmental information, which is based on Western values of transparency and governance, may be indicative of a shift in China’s relationship between the state and its citizens. By allowing citizens to access information held by government bodies and thereby opening these bodies up to scrutiny, China has departed from a long-held position of secrecy that has its roots in Confucian values. Serving as a means to resolve issues caused by China’s severe environmental degradation, the right may continue to influence how Chinese citizens perceive their relationship with the state and pull China further towards Western values. However, this is not guaranteed: as evidenced by the CCP’s exclusion from the OGI and MOEI regime, the CCP has altered the scope of the right to fit into the Chinese style of top-down governance. As such, instead of pulling China to the West, what might develop is a mix of the Aarhus Convention’s Western focus on transparency with Chinese political values.
These highlighted points are of particular value in deepening our understanding of legal transplant theory by identifying key aspects of the application of the theory. Legal transplants are the most ‘fertile source of development’Footnote 137 for legal systems and it is possible that England and China could reform their respective environmental information regimes through the adoption of transplants. The transplants analyzed in this article, as shaped by the international framework of the Aarhus Convention and the particular national characteristics of England and China, seek not only to improve how the right is guaranteed but serve as an indication of how the right of access to environmental information will continue to develop into the future. Ultimately, the provision of environmental information is a key factor in engaging members of civil society and empowering them to act as environmental stewards. In considering how legal transplants could help to improve implementation of the right to seek environmental information from the state, the ‘legal elite’ in both England and China could better promote the values of environmental stewardship and protection enshrined in the Aarhus Convention.
