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Second Report Session 1998-99
Volume 2 - ACCESS TO OFFICIAL INFORMATION
SCOTTISH OFFICE
Refusal to disclose the reasons behind a decision to allow the construction of an overhead power line to go ahead
Dr G had concerns about an electricity company constructing an overhead power line near his home. He asked the Scottish Office Education and Industry Department (SOEID) to provide him with: a copy of the letter they sent to the electricity company in which they said the construction of the line could go ahead, including any conditions; copies of other correspondence; and the full reasoning behind their decision. SOEID sent him a copy of their letter to the electricity company and, exceptionally, because he had brought the matter to their attention, they provided him with copies of other letters. They told him they could not disclose the reasoning behind their decision but they gave him a summary of the usual considerations which are taken into account when reaching such decisions. They also said that, under the Electricity Act 1989, once the Secretary of State had granted consent he could have no further role in such matters. In their comments to the Ombudsman, SOEID said that, while they may have given the impression that they had withheld relevant information from Dr G, they had in fact given the detailed reasons behind their decision when they wrote to him. Furthermore, as the Secretary of State had made a decision, it would have been inappropriate to amplify the reasons for that decision. They went on to say, however, that the information request had prompted them to review their procedures; and in future they proposed to include a statement of reasons in all decision letters. The Ombudsman found that SOEID had gone to considerable lengths to provide Dr G with information in response to his request, although their reply was marred because they gave the impression that information had been withheld when it had not. He welcomed SOEID's decision to include more information in their decision letters. He also commented that while the Secretary of State has no further role in such matters once a decision has been taken, that does not necessarily override the obligation to release information in accordance with the principles of the Code.
7.1. Dr G complained that the Scottish Office Education and Industry Department (SOEID) had denied him access to information to which he was entitled under the Code of Practice on Access to Government Information (the Code). Dr G was seeking information about SOEID's decision to grant consent for the construction of an overhead power line near his home. My investigation began in August 1998 after I had obtained comments from the Secretary of SOEID.
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Background
7.2. The primary legislation governing the supply of electricity is the Electricity Act 1989. Except in very limited circumstances, section 37 of that Act provides that overhead lines cannot be constructed without the Secretary of State's consent. Such consent may be granted subject to conditions.
7.3. Before the Secretary of State will grant consent, the applicant (usually an electricity company) must obtain wayleave, or agreement, from the owners or occupiers of land which the line is to cross. The legislation requires the Secretary of State to call a public inquiry if the relevant local planning authority object to an application. He is not obliged to call an inquiry in the face of objections from any other parties, but he has discretion to do so if he considers it appropriate.
7.4. On 16 February 1998, SOEID granted consent to an electricity company for the construction of an overhead power line. There was no public inquiry.
7.5. Dr G had been in correspondence with SOEID about the proposed line since November 1997. There was no statutory obligation on either the electricity company or SOEID to consult Dr G: the line was not intended to pass over his property and wayleave was not therefore required of him. Nevertheless, Dr G had concerns about the construction of an overhead power line close to his home. He had also brought to SOEID's attention work being carried out on the construction of the line before the Secretary of State's consent had been granted.
7.6. On 19 February 1998, after consent had been granted, Dr G wrote to SOEID asking for: a copy of the Secretary of State's letter of consent, including any conditions; a full statement of his reasons for granting consent; and copies of all representations by the electricity company in reply to objections to the construction of the line.
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SOEID's response to the request
7.7. SOEID replied on 19 March. They provided Dr G with a copy of the letter of consent, and disclosed copies of their correspondence with the electricity company in which Dr G's objections had been raised. In relation to the Secretary of State's reasons for granting consent, however, SOEID said that it was not their normal practice to disclose such information. They said that the Secretary of State's formal letter of consent had to stand on its terms, and that it would be inappropriate for them to comment further after the decision to grant consent had been taken. However, they summarised the considerations normally taken into account by the Secretary of State in coming to such decisions. Those included: the need for the project and its environmental and economic consequences; the efficiency and economy of electricity supply; and the protection of the public from danger. They also explained that the Secretary of State was required under Schedule 9 of the Electricity Act 1989 to have regard to certain environmental matters.
7.8. Dr G wrote back on 24 March, saying that he believed he was entitled to know the reasoning behind the Secretary of State's decision. Replying on 3 April, SOEID addressed this and other matters which Dr G had raised regarding the decision. They said that once he had granted consent under section 37 the Secretary of State had no further role in the matter. However, they met Dr G's request for copies of other correspondence between SOEID and the electricity company about construction work which had taken place before consent had been granted. They explained that they did not normally provide copies of such correspondence to third parties, but did so exceptionally in Dr G's case as it was he who had brought the matter to SOEID's attention.
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7.9. Aggrieved by SOEID's refusal to disclose information he had requested Dr G complained, through a Member of the House of Commons, to the Ombudsman.
7.10. Commenting on the complaint, the Secretary of SOEID said that the Department had sought to provide Dr G with information relevant to their consideration of the case. He acknowledged that SOEID's letter of 19 March might have given the impression that there were detailed reasons behind the Secretary of State's decision to grant consent when in fact all of the considerations they had taken into account were contained in their letter to Dr G (paragraph 7.7).
7.11. The Secretary of SOEID went on to say that once the Secretary of State has made a decision under section 37 he is functus. In other words, he has no power to amend or withdraw a decision once taken. On that basis, the Secretary said that it would have been inappropriate for SOEID to purport to amplify the Secretary of State's reasons for granting consent beyond the explanation given in their letter of 19 March to Dr G.
7.12. The Secretary confirmed that at the time consent for the overhead line was granted to the electricity company, it had been the Department's long standing practice not to include in the formal decision letter reasons for the Secretary of State's decision. The only exception to that practice was in relation to applications which had been the subject of a public inquiry. In those cases, a 'fully reasoned' letter had always been issued. He went on to say that, in light of the matters raised by Dr G's case and, more specifically, the requirements of the Code, SOEID had reviewed their procedures. He said that henceforth it would be their practice to include a statement of reasons in all decision letters. The level of detail included would, he said, vary depending on the matters raised during the application process.
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Assessment
7.13. I have examined SOEID's papers relating to the decision to grant consent for the overhead line near Dr G's home, and have established that there is no other information to be disclosed to Dr G in relation to that decision beyond that which he has already received. In view of that, there is no need for me to consider the issue of whether SOEID could have relied on the fact that the Secretary of State was functus in relation to the decision to grant consent for the line in order to refuse to provide information of the type requested by Dr G. However, I note that SOEID, like all bodies within the jurisdiction of the Ombudsman, are subject to the Code and a refusal to provide information can be sustainable only if the information falls within the scope of one or more of the 15 exemptions listed in Part II. Although I accept that the Secretary of State is functus in relation to the decision that may not necessarily exclude a requirement to produce relevant information in accordance with the terms of the Code.
7.14. Putting to one side that issue, I am nevertheless pleased to be able to report that SOEID have taken the opportunity to review their procedures and have decided, in future, to disclose the full reasons for all decisions made under section 37 at the time the decision is made, not just those which are subject to a public inquiry. I welcome SOEID's change of procedure as a real step towards the sort of openness in the government decision making process that was envisaged by the Code. I commend to other departments SOEID's positive response to the issues raised by the intervention of this Office.
7.15. So far as SOEID's handling of Dr G's request is concerned, the papers I have seen demonstrate that SOEID went to considerable lengths to provide information, including explanations of legislation and procedures, and copies of their correspondence with the electricity company. However, as the Secretary acknowledged in his comments to me, an otherwise helpful response to Dr G's questions was marred when they gave the impression that information was being withheld.
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7.16. I accept that under the Electricity Act 1989, the Secretary of State's powers in relation to consent for overhead lines is limited to the functions set out in section 37 (paragraph 7.2). However, SOEID could have made that point clearer in their correspondence with Dr G, as they eventually did on 3 April. In the event, as no information relevant to Dr G's request was being withheld, I do not see why SOEID could not simply have said so. SOEID have already acknowledged that they could have handled the request better. I hope that their commitment to explaining their decisions in full will avoid similar confusion in future.
Conclusion
7.17. I am satisfied that there is no other information relevant to Dr G's request to be disclosed. SOEID's decision henceforth to disclose, as a matter of course, the reasons behind all decisions taken under section 37 of the Electricity Act 1989 is a welcome development. I do not uphold the complaint.
Total screening and investigation time = 21 weeks
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