David HollandThe human rights of Professor Wadhams
This is a guest post by David Holland.
I recently received the Information Tribunal decision in respect of my request to the University of Cambridge for Peter Wadhams' AR5 Review Editors’ reports. It is short and to the point. The Tribunal dismissed my appeal on two separate grounds. As I read the decision, if unchallenged, it means that no employee of a public authority participating in any IPCC assessment, even if entirely at the public’s expense, can be required under the EIR to disclose environmental information created or received in connection with it, if their work was entirely voluntary.
Firstly, the Tribunal decided, based solely on Aarhus article 5(1)(a) that the Commissioner was entitled to re-interpret what I thought were the clear plain English definitions of “information held” in the Convention, Directive and Regulations to mean the opposite of what the Secretary the State’s statutory code of practice states.
The arts and scientific research shall be free of constraint. Academic freedom shall be respected.
This Report arises from the state of confusion which exists in the UK about the applicability of the EU Charter of Fundamental Rights. It was prompted by the comments of a High Court judge in November last year, which the Government sought to correct in the press, and which were debated on the floor of the House of Commons. In the first chapter of the Report we conclude that both this and the previous Government bear some responsibility for this confusion.
It can be seen that the legal basis of the claimant’s claim rests in part on alleged violations of the Charter of Fundamental Rights of the European Union. When I read this in the skeleton argument on his behalf I was surprised, to say the least, as I was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law.
The judge in NS case went on to conclude that a ruling from the European Court of Justice means that the Charter of Fundamental Rights did create further justiciable rights in the UK, one of which was the right to academic freedom.
Whether academic freedom truly does involve occupants of the ivory tower being placed above Freedom of Information legislation is a moot point, but for the moment the Tribunal seems to have concluded that it does.
In a statement to the House of Commons in November last year the Secretary of State for Justice stated that the Government did not agree with the judge’s analysis of the NS case, that it would look for another case to rectify the situation, and that the Charter applied only to the application of EU law in the UK.
I had no idea that a simple request for IPCC Review Editors’ reports might lead me into this morass. They say that he who represents himself has a fool for a client. I am not sure this is true in the First Tier Tribunal but I am less enthusiastic about taking this case to the Upper Tribunal. I will be interested to see what BH readers might think.
Reader Comments (67)
All the reticence just shows no alarmist actually believe in the alarm. Otherwise surely saving the world would be more important than everything else including human rights
Academic freedom seems to allow people to hide their incompetence and alarmist complicity whilst leeching from the public. These enormous barriers must hide great many secrets. What a story that could tell! Climategate would insignificant next to it.
Bankers where dealt with when they fiddled with Libor, etc and damaged our economy. Why can't alarmists be investigated when they fiddled with the data and are damaging our economy!.
I am a taxpayer and should be able to see where (and how) the money is spent. What about the Human Rights of the taxpayer?
Pepper v Hart
Just hang them on their own non-science.
If they quote human rights then just use it against them.
You clearly have a right to this information as they are infringing your academic freedom & right to do scientific research by withholding information you need for your research.
It doesn't say "the rights of an academic". Fundamental rights are rights that everyone has and therefore simply by doing research that is "academic", you are protected by the charter from information being denied to you.
The arts and scientific research shall be free of constraint. ... that means you!!
The "free of constraint" means that your scientific research must be "free of constraint" - and therefore the information commission is compelled to ensure that you are given free access to necessary information - PARTICULARLY from a public source.
Frantisek Kafka would have been right at home with this sort of judicial process.
David
The usual form of the quotation you conclude with is “A LAWYER who represents himself has a fool for a client”, so we’re both in the clear there!
Freedom of information legislation is supposed to be available to all, not just those with the resources to field large legal teams in the course of litigation. Unless laypeople are prepared to test it’s application in cases that would not attract the attention of well funded organisations, it simply does not work. And according to the Supreme Court, freedom of information legistlation is essential to a modern democracy.
So far as I am aware it is still possible to appeal to the High Court without either legal representation or the risk of costs being awarded. Good luck if you decide to go for it. I'm sure that it's worth it.
Tony
This decision stunned me when I first read it, as much by its brevity and readers might wrongly think that I put no legal arguments forward as to why the Commissioner was wrong. This Tribunal shows no evidence of having considered them. Of course I will, reluctantly, appeal and will let you see the grounds when I have finished them. I am on domestic chores for a few hours but will catching up at lunch time.
@David Holland,
I am not sure that the EU Charter is highly relevant to the decision. It seems to have been added on to the judgment as something of an afterthought. Even if it were known with certainty that the EU Charter definitely does not apply, then it still seems unlikely that the judgment would have changed. Legally, it largely rested on the Tribunal's definition of the word "held", together with the opinion that even if the information were held by Cambridge, there would be a positive disbenefit in releasing it.
The biggest problem of all here was that you won no sympathy from the court AT ALL on the public interest question - quite the contrary - and it was looking for a means, any means, to deny your appeal. The judge clearly had you down as one of those fossil-fuel funded den**r conspiracy-theorist whack jobs out to harrass bona fide professionals doing a noble job. The "tell" is in the rather extraordinary (and legally unnecessary) selection of phrases and adjectives used to describe the IPCC and its process:- "exemplary rigour and transparency of process", "highest standards" etc. And on the negative side..."the interference with academic freedom which the disclosure of this material would represent is considerable."
I invite people to read the whole passage below, which strays a long way beyond a legal opinion (although it is undoubtedly opinion), and see if you can guess where the judge and tribunal members stand in the global warming debate.
quote from Paul_K's posting:
'Professor Wadhams role in this was contributing to the rigour of the process to ensure that the publications of IPCC were of the highest standard. '
My response: BWAAAAAAAAAAAAAAAAAAAAAAAAHAHAHAHAHAHAHAHAHAAAAAAAAAAAAAAAAAAAAAA!
The Ivory Tower is NOT above the law.
I am Not, of course, blaming Paul_K for that.
Are these kind of requests granted in other fields?
I may be being naïve, but in whose interests is it to deny the request? If these sorts of applications are routinely granted in other fields, doesn't it end up looking rather suspicious and shady?
A journalist (David Rose?) should investigate the extent to which such requests are granted in various different fields and, if there is a difference, ask why there is this difference. If there is a cover up, it is a huge story. Having uncovered the Parliamentary expenses scandal I wonder if someone at the Telegraph might be interested.
Hmmm, it might be worth flagging this up to the media. This is a crude attempt to put climate science beyond the nasty old denier's reach and a lot of people would think that this is a good and noble decision, but these things have wider implications. 'Scientist' can be widely interpreted and can be linked with 'political' and 'social' and any number of other areas of study where we might not want to give them a blank excuse note. Will anything dodgy be relegated to 'voluntary research' and thus get guaranteed secrecy? Will the chancellor's job be renamed 'Chief Economics Scientist'?
I've often said that our problem with the EU laws is not with the laws but how our country interprets them.
Addition - most professional people take work home with them. This would be 'voluntary' work, would the standard response to any FOI be 'sorry, did this in my own time'.
Charlie Furness
Having heard a Tribunal judge say apologetically to ICO council, “Your know we hate having to criticise the Information Commissioner”, gives a clue to the way in which the process can work.
The arts and scientific research shall be free of constraint.
-------------------------------------------------------
Bizarre. Civilisation requires that there is no active human activity that is "free of constraint."
I cannot help thinking that behind the scenes some kind of orchestrated "fix" is being applied to FoI. The ICO office seem to have modified their process structure + gotten far more partisan on the side of the body being appealed about.
After the subject of our questions (The Environment Agency) got censure but no sanction at a first bout of FoI our small crew asked further questions which were rebuffed with a very different treatment by the Information Commissioner and we subsequently went to a first tier tribunal.
The matter concerned evidence of criminal actions by EA officials and the tribunal adjudged that essentially the EA were allowed to take the "5th Amendment"!
Wadham's bullying antics speak volumes for his view of debate in the matter and his monumental self regard ... The tactics used to hide bad behavior and wrongdoing by official bodies eventually end up with them pretty much volunteering guilt by dint of the amount of effort they expend evading transparency :-) It's not like they haven't fiddled investigations in the past eh?
johanna:
BH quote of the week there.
Otter
"The Ivory Tower is NOT above the law."
I'm puzzled, since when? From what I've seen, at least in the case of the Consensus, it's not even on the same planet as FOI.
But I suppose exceptions sometimes have to be made. After all, every right thinking person knows we all have to support those heroic chaps who are putting their very lives on the line fighting to save the planet (and us if we did not know it) from the terrifying fate that is very shortly about to overtake it. Even the IPCC itself has reluctantly had to try to warn us to wake up and do something before it's too late.
Paul_K,
Thank you. I agree that the the EU Charter not the real issue but nonetheless it does not stand up. Those 15 words are all it says on academic freedom and as Mike Hasler said it cuts both ways. The Charter "does not possess the level of specificity suitable for court decisions" on academic freedom according one lawyer. So far the only mention of academic freedom that I have found in UK statues is in s. 202 of the 1988 Education Reform Act and what it states does not assist the Tribunal decision.
However, the Charter itself provides the arguments that it does not apply to this case. Tucked away in article 53 it states,
The right to receive environmental information dates from a 1990 Directive. In any case article 11 of the Charter recognises freedom of information as a human right and must be balanced against any right that exist to deny access. The real argument does indeed lie in the meaning of the word "held", on which I will say more in a while. In the meantime does anyone think that the passage identified by Paul, which can not be traced back to the pleadings, amounts to a separate ground of appeal?
Except in the model world.
Johanna: I parsed your comment to mean that 'ALL active human activity is constrained'. If that is the case - that I parsed it correctly - then it depends what 'is' is: ie: does it actually mean: 'should be'?
David
A ridiculous decision quoting Article 5 of the Aarhus Convention which relates to dissemination, while the subject matter came under Article 4 and your right to access information on request. The Compliance Committee meeting in Geneva on December 16th, in advance of this you should send in a Communication:
http://www.unece.org/fileadmin/DAM/env/pp/compliance/CC_GuidanceDocument.pdf
You have enough information developed on this already.
Ah, very interesting Pat. The wisdom of crowds ain't dead.
So have I got this right? -
Academic "freedom" means the right to withhold from the taxpayer, the results of science he has paid for ?
It would appear to me that the Tribunal is perverting the will of the people. It wouldn't surprise me if they start making judgements based on the national interest.
Professor Wadhams should be ashamed of himself or maybe he is ashamed of his comments as reviewer?
harry, get back to me when you put your point in plain English.
"Wrong kind of poor" Seems like one law for the rich, one law for the poor.
- Wouldn't one of those many NGO's dedicated to fighting for the justice rights for the poor be willing to use some of the resources financed from the legacies of benefactors ?
- No probably not, I imagine those NGOS has been hijacked from inside by those who would say "Any denier is the wrong kind of poor, we are not going to help him".
.. If there is anyone visiting here for the first time you can see that the fantasy universe created by green PR teams where "deniers have unlimited resources from big oil" is 180 degrees wrong.
Meanwhile he has foud another audience for his predictions. Hot off the press.
"REYKJAVIK, Iceland -- Get ready to order those beach umbrellas in Barrow. One of the leading authorities on the physics of northern seas is predicting an ice-free Arctic Ocean by the year 2020.
That's about two decades sooner than various models for climatic warming have indicated the Arctic might fully open.
"No models here," Peter Wadhams, professor of applied mathematics and theoretical physics at the University of Cambridge in England, told the Arctic Circle Assembly on Sunday. "This is data."
Wadhams has access to data not only on the extent of ice covering the Arctic, but on the thickness of that ice. The latter comes from submarines that have been beneath the ice collecting measurements every year since 1979.
This data shows ice volume "is accelerating downward," Wadhams said. "There doesn't seem to be anything to stop it from going down to zero.
"By 2020, one would expect the summer sea ice to disappear. By summer, we mean September. ... (but) not many years after, the neighboring months would also become ice-free."
Wadhams later clarified that by "ice-free" he didn't exactly mean the Arctic was going to look like the Baltic Sea in summer.
The scientific definition of "ice-free" is complicated. It is basically based on the amount of ice found in a number of grids when looking at the Arctic from space.
An "ice-free" Arctic, as defined by scientists, would remain full of floating ice in the summer, but the ice would be broken up enough that a ship could push through it.
Wadhams' pronouncement was angrily challenged by one of the scientists modeling sea ice decline, but the elderly physicist stuck to his guns. He admitted he is predicting a very early opening of the Arctic, but this is "not a model.
"I wasn't issuing any threats to anyone."
The modelers, he told Alaska Dispatch News later, are very sensitive about their models. But he added that it's hard to deny the actual data. He had plotted the ice decline as a graph curving steadily and increasingly downward since the 1970s and hitting zero in 2020."
http://www.adn.com/article/20141102/expert-predicts-ice-free-arctic-2020-un-releases-climate-report
ht C777 a Brietbart comment.
Appeal! They are outright wrong with this line of argumentation:
"The IPCC is in essence an exercise in academic evaluation of the peer – reviewed papers published on issues relevant to climate change."
If they stopped at that then it might be ok but as there is a Summary for Policymakers it moves the exercise from academia into politics and taxation. Of course that should have been obvious to them since the IPCC is an overtly political entity - it's even in the title: "Intergovernmental Panel."
Pat,
Exactly! And covered in detail in my submissions with references to to the Directive, the ECJ decisions, the Aarhus Implementation Guide and the Almaty Guidelines.
The Information Commissioner’s powers and duties are defined in sections 47 and 48 of Freedom of Information Act (FOIA). However, before considering whether the Commissioner’s advice, which he stated was not binding, was in accordance with the law, it is worth noting that regulation 5(6) of the EIR states,
.This, I think, means that any fundamental change to meaning cannot be made relying upon the the FOIA. However section 47(1) of the FOIA as modified by EIR regulation 18 states,
Section 32 of the Code of Practice, which is unchanged since it was laid before Parliament, states,
Clearly the Commissioner acted outside his authority by changing the meaning of the regulations to conflict with the Code of Practice, which must be assumed to be what Parliament intended to be its interpretation of “held”. All of this and more are in my submissions, which are not even referred to in the decision. It is also worth mentioning that the University was not joined as a party to this appeal.
@David Holland,
David,
You asked if the Tribunal's prejudice might be separate grounds for appeal.
Some useful material here for background reading on the subject of bias in judicial decisions.
http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/independence/
AND
www.adminlaw.org.uk/docs/sc%2012%20Holly%20Stout.doc
Boys and girls, there is no question that this is wrong under administrative law in general, and the specific provisions in particular. But, as usual, they are using their massive resources to try to crush an individual.
Pat Michaels, I'm sure that your help would be invaluable in that situation.
As before, keep it up, Pat! And, good to see that your vast experience might help someone else.
Paul_K,
Thanks again.
Here's a suggestion from the colonies.
In Canada we have a relatively small TV network called SUN News. One of its reporters, Ezra Levant, takes on causes such as this and often successfully embarrasses the authorities into change by keeping the absurdities in public view.
One of his effective tools is to crowd source legal costs. He solicits funds from the public to engage articulate and well informed lawyers to comment on the cases, hinting at the suggestion that if a legal remedy were to be required the lawyer would take on the case. In the early going, this exercise is not expensive - competent publicity hungry lawyers are not a scarce commodity!
SUN TV benefits from the many hours of relatively low cost programming by interviewing the lawyers in depth and by naming and shaming the idiots responsible for bureaucratic malfeasance and/or stupidity. Authorities don't like being ridiculed and often fold under pressure.
Levant himself is a lawyer and knows how to stay out of trouble. He recently did a brutal expose of David Suzuki as an incompetent fraud and charlatan and avoided getting sued - because he had the facts. Fun to watch!
http://www.sunnewsnetwork.ca/video/2735775008001
You may be surprised to find who really will not like the idea that academics should not be subject to FOI for their work, given there are plenty of areas like GM and nuclear that the greens have and will be hitting with FOI request to find out the ‘evil cooperate links’ etc Even the Guardian is smart enough to see that such a blanket ban will cause all sorts of issues with their investigations .
Its continues to amaze me how much smoke and mirrors are required in this ‘settled area’ it could very well be the establishment , and with Cambridge it is hard to get more establishment, circling the wagons.
Academic freedom shall be respected - selectively, on a case by case basis. Thus Spoke The Tribunal.
I do wonder at such times if Douglas Adams does not read such things with a small smile, or possibly slight horror at what he satirised so easily has come to pass.
Freedom of information legislation is supposed to be available to all, not just those with the resources to field large legal teams in the course of litigation.
Nov 3, 2014 at 9:38 AM | TonyN
Rather clearly what is supposed and what is can be different, especially when powerful motivations and large resources are deployed to ensure stuff some folk don't fancy the public finding out remains under wraps.
Having heard a Tribunal judge say apologetically to ICO council, “Your know we hate having to criticise the Information Commissioner”, gives a clue to the way in which the process can work.
Nov 3, 2014 at 11:27 AM | TonyN
Indeed. I am currently pursuing another public sector body who appears to operate on an equally Orwellian 'all information is freely available, but some less freely than others' basis, refusing to even answer questions about abusive activity on the basis they only hold others to account but have their own secret rules on why they cannot be held.
Sadly for them, the ICO did not agree, so we are lumbering towards their next blustering dismissal minus one dismissal excuse. As it's personal, I am disinclined to accept it any more next version round than up to now.
So I say pursue.
They may of course marshall every trick and old boy connection in the book and prevail.
But by heavens when it is in the full glare of the spotlight they surely don't like it. 28Gate still resonates.
"'Professor Wadhams role in this was contributing to the rigour of the process to ensure that the publications of IPCC were of the highest standard"
Unconscious comedy since the tribunal is blissfully unaware that Wadhams is widely regarded as a nut job even inside the CAGW community as recently demonstrated.
I vote to pursue, and should a crowd-funding effort emerge to support Holland's legal expenses, I will contribute.
I also endorse Mike Haseler's approach. As a peer-reviewed, published, researcher Holland is literally a peer of any other academic, whether he is employed by the government, a private institution, a journal, a "think tank" or his own personal resources. There is no "second class" of "peer". Even the EU, nor yet the UN, yet authorizes scientific peers to withhold information from one another. To the contrary in order to ensure and enforce the freedoms ennumerated some academics may be (under this newly cited rule) compelled to disclose, where under older understandings of freedom and privacy such compulsion might have been considered repugnant.
Go for it.
Fight, fight fight fight. Escalate this as high as you can.
The climate obsessed are at heart cowards and bullies.
Push them hard, harder and harder still.
Need money? Ask for it.
The university doesn't hold the information you want. How difficult is that to understand? Just like my company doesn't hold my mp3 collection, even though it exists on my work computer. It could access it if it wanted but it doesn't "hold" it - it is in no inventory of documents, it is unknown to anyone but me, it is mine, not theirs. It cannot be given to someone else, just because they want it. In the same way the company doesn't hold my office chair. It is mine. I paid for it. It lives in my office, but it is not the company's property and they cannot give it to someone else.
If the documents were held by the uni. the tribunal might ask itself what scientific or academic purpose your access might serve. It is possibly that they might conclude that your request has no purpose beyond digging up something that might embarrass either the Prof or the IPCC.
Political Junkie,
That Ezra Levant is a bit of a legend, taking on the formerly untouchable human rights commission and battering them in to defeat.
In a round about kind of way Dave and Pat remind me of his tenaciousness and never give up attitude simply because their cause is the right cause.
Mailman
Huff,
Seems you are conflating two separate issues here.
1. Quite rightly if you provide your own chair in an office in your house that you have purchased with your own money then that is not university property.
2. If you produce documentation during work hours using your work computer saving that document to storage, which will no doubt be included in backups managed by your work place then it's much MUCH harder, if not impossible to argue your work doesn't hold your saved documentation.
Mailman
Raff,
Are you being serious? I assume you paid for your MP3 collection as well as your chair. Wadhams was paid to go to Marrakech on AR5 from public funds as well getting rides in submarines at the taxpayers expense. Unlike us so called skeptics, I doubt that any of his work on climate change over the last 20 years has been at his own expense
"paid to go to Marrakech on AR5 from public funds"
Would that be university funds? It is the university you are arguing with. Let's say that my wife bought me my chair and mp3 collection. Does my company now have the right to help itself just because of that?
"as well getting rides in submarines at the taxpayers expense"
Was it a university submarine? Did he go to Marrakech in it? What relevance does a submarine have? And what sort of cost does a trip on a sub entail for the taxpayers - did they go on a special mission for the prof?
What scientific or academic value would your access to the docs add? Titillation of the small minority interested in the minutiae of the process of IPCC report creation seems unlikely to add value.
I'm not fully sure of your UK procedures, but basically Article 9(1) of the Convention applies:
1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.
In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.
So you next step is to appeal to the UK Courts, but the UK doesn't provide proper remedies in this regard due to the prohibitive costs involved. There are on-going proceedings against the UK in this regard:
http://www.unece.org/environmental-policy/treaties/public-participation/aarhus-convention/envpptfwg/envppcc/envppccimplementation/fifth-meeting-of-the-parties-2014/united-kingdom-decision-v9n.html
http://tinyurl.com/nrkyrg8
So really there are no other 'domestic remedies' available to you, so you need to take it further into a Communication at UNECE, which doesn't cost you anything. As I pointed out, you should get it in before the December meeting.
Pat,
I think I have to appeal to the Upper Tribunal before going to the Aarhus compliance committee.
Raff,
From your questions it seems that you are not fully up to speed on this case and not entirely in favour of Freedom of Information or all that bothered about the reliability of IPCC assessments and the consequences for the public. However, to answer your questions DECC pay all the expense of British participants in the IPCC process and all of the writing WGI team are full time salaried employees of public authorities. The subs were those of our navy.
If public authorities did not let their employees volunteer to work for the IPCC it could not produce its reports.
Mailman,
"That Ezra Levant is a bit of a legend, taking on the formerly untouchable human rights commission and battering them in to defeat."
How right you are. It might be of interest to some here that Ezra and Mark Steyn both took on the previously unchallenged, all powerful, self-important Canadian human rights commissions and simply beat the cr*p out of them. It's likely that Michael Mann is badly underestimating Steyn - a tough opponent.
This may support my earlier argument - it helps to be a skilled communicator with good access to the media when fighting city hall - Levant and Steyn had both.
David
You would have to exhaust what domestic remedies are available to you before going to UNECE. It surprises me that there is an Upper Tribunal. One of the requirements of Article 9(1) is that the appeals process, as I quoted above, has to be an:
"expeditious procedure established by law that is free of charge or inexpensive"
If it now turns you that having gone through the appeals process in the Tribunal, you have to go back in again, then this is not 'expeditious'.
Anyhow either way keep it up. It is completely and utterly outrageous that environmental information related to the development of public policy is being kept, no doubt deliberately, behind closed doors. In particular as it is funded by public money. If it was private money funding commercial interests, I could accept that the restrictions on disclosure apply, but this is outrageous.
David, you are asking for information from UoC, not from DECC. So it is irrelevant that DECC paid. UoC does not hold the information you demand. That seems clear. And I had a ride on a submarine once. Does that make me forever at risk of having to surrender my working papers to you?
I like FOI btw. I would be very interested to get hold of the internal papers of the GWPF. They have charitable status and I think I should be able to see where their funding comes from. And the details and internal and external mails relating to the creation of the reports they publish as part of their "charitable" activities. I guess you'd support me in that. And I'm pretty sure that Lawson will have had a ride in a government submarine, ship, plane, helicopter or car in his time in government, so he is fair game, no? What's that, those trips are not relevant? So are you saying that Wadhams trip in a sub was directly for the purposes of producing the AR5 Review Editors’ reports you are so keen to read?