Keeping informed: Kevin Dunion
The former Information Commissioner on the quest for environmental justice and referendum campaigns, then and now
Looking back at how Scotland has changed since devolution has particular resonance for Kevin Dunion.
As a board member of ‘Scotland Forward’, calling for a Yes, Yes vote in 1997, he was in the vanguard of the campaign that saw the creation of the new Scottish Parliament.
Then director of Friends of the Earth Scotland, he was part of a broad cross-section of society represented on the board, not just pro-devolution politicians, who believed this was an opportunity to make decisions closer to home with a “distinctly Scottish agenda”.
Although he left the environmental charity in 2003 to become Scotland’s first Information Commissioner, ahead of the new Freedom of Information Act, he is still a member and keeps a ‘watching brief ’ on environmental issues.
Also, in many ways, his new job was a natural progression from previous work, as one of his main drivers there was campaigning for rights for all to access environmental information and the concept of environmental justice.
It was the subject of his 2003 book, Troublemakers: The Struggle for Environmental Justice in Scotland and Friends of the Earth has had a renewed push this year to highlight the costs and legal hurdles people need to go through when protesting against developments or plans which impact on the environment.
But Dunion says: “Although Friends of the Earth has kept that as part of its portfolio, I’m not sure it really has taken a direction that I would have hoped, which is to make environmental issues much more pertinent.
“Certainly, my book was focused on the impact of open-cast mining, land ll sites, contaminated land on poorer communities in Scotland and the limited capacity for redress – both in terms of access to information about those often polluting industries and access to justice in terms of redress.
“A significant part of my time in the last three years at Friends of the Earth, we really worked with local communities in the poorer parts of Scotland. I don’t really see that agenda being carried forward in a prominent fashion by organised environmental groups in Scotland.”
That is not to say that the work by his former employers on procedural environmental justice is not important, he adds: “This idea of having to have standing or title and interest to actually pursue court action against developments which are harmful to the community in general, I think that has been a longstanding issue in Scotland.
“But the focus of some of their activities, of what are described as environmental justice issues, are not necessarily those that I was focused on.” Dunion recalls working with groups in areas like Cambuslang and Rutherglen, where ‘Danger: keep out’ signs were put up, but communities were still being told there was no danger to public health.
He adds he is impressed by the work from grassroots groups with no affiliation to larger hierarchies, which have sprung up in response to environmental justice issues.
A pertinent recent example is the impact of coal mining on communities, the collapse of Scottish Coal, leading to concerns about measures to restore opencast sites – which in East Ayrshire is estimated will cost £62m.
“That was warned about when those planning applications were made,” he says. “Concerns were raised then, but you depend on the planning authorities to make sure the conditions are in place and are enforced.” So with Scotland now able to manage many of its own environmental affairs, does he think there are issues that should have been resolved by now?
“A wide range of things have taken such a long time to come through. I’d have hoped some would have taken a kind of leap forward rather than small, incremental steps,” he replies.
“The frustration around things like taking action against polluters and depending on SEPA being able to take prosecutions through the courts, we’re now at the stage where we are talking potentially about SEPA having the capacity to impose on-the-spot fines. We’ve been talking about this for years, because we’ve known for quite a considerable amount of time the delay, the cost and, until relatively recently, the pretty low level of fines imposed by sheriffs were such that these were not really sufficient deterrents.”
Last year it was revealed SEPA had fined Exxonmobil £2.8m for neglecting to account for 33,000 tonnes of carbon dioxide at its ethylene plant at Mossmorran in Fife and Dunion says: “Where they’ve been given the powers, they are prepared to use them, but without those powers it’s much more difficult to make effective inroads into those who are prepared to flout or disregard environmental obligations.”
His other frustration is over the current split over wind farms and while previously on the board of Scottish Natural Heritage, the organisation had published guidance on the siting of wind farms. Although planning issues are the responsibility of the Scottish Government, many energy matters still remain reserved to Westminster.
Nevertheless, says Dunion, Scotland has “never really had an entirely coherent energy strategy.” He says: “It has been largely left to the market. Therefore, wind energy is the closest to a competitive market price and was where industry was invested, some of the other technologies are clearly lagging behind.”
He mentions a dispute over wind farms on the Isle of Lewis during his time at Friends of the Earth, which was opposed by RSPB and says: “My view is we could have built a better and stronger engagement, but the way the planning system works is partly adversarial, it’s certainly market driven in terms of development and there are groups who are set up to respond to those specific initiatives and often that response has to be one of opposition.”
Since devolution, actions like the Climate Change Act have seen praise heaped on the Scottish way of doing things, but Dunion says he isn’t convinced by the concept of “sustainable economic growth”.
“I don’t genuinely see that as being sustainability,” he says. “ ere will be decisions taken which are perhaps contrary to our best economic interests, but are necessary for our environment interests.” This idea, of putting the environment at least on a par with economic development, was at the core of Friends of the Earth’s work under Dunion and featured in a publication prepared by its head of research, Richard Dixon. Dixon is now in Dunion’s old job, having moved from WWF Scotland and his former boss says he is pleased Dixon has gone back to Friends of the Earth.
Dunion stood down as Information Commissioner after two terms and is now executive director of the Centre for Freedom of Information based at the University of Dundee, as well as a member of the Access to Information Appeals Board at the World Bank.
Th e role has involved a lot of work comparing FOI in countries as diverse as India, China and Brazil.
But the issue of environmental information – and in particular ensuring there is a good level of public scrutiny – is still something he is very keen on highlighting.
One issue he will be raising with international commissioners at a conference in Berlin this year is the level to which arm’s length companies are able to exempt themselves from FOI laws.
“When the EEC directive on access to information was passed, it made provisions that it should apply, on the face of it, to bodies carrying out public functions which had an effect on the environment.
“Certain assumptions were made, for example, that would apply to water companies or railways.
“In reality, it’s been very difficult to find out how that part of the directive has been applied to, say, private concerns delivering public services.
“Where it has been tested in courts in England on two occasions, the courts took a very narrow view and decided water companies were not covered by the EIRs and nor was Network Rail.
“Now, that’s almost entirely contrary to what I think was anticipated by the drafters of the directive.
“Because of devolution in Scotland, water remains in the hands of a public company and therefore is covered by Freedom of Information and the EIRs and Scottish Water does get a lot of requests.
“To remove that from the degree of public scrutiny just seems to me completely inimical to what the directive intended and indeed what environmental justice would demand.” Exactly 30 years ago, Dunion formed Radical Scotland, a magazine dedicated to intellectual debate about the nation’s future.
“After the debacle of the referendum in 1979 and then the Thatcher government coming in, there was almost a national embarrassment over the result of that result, the shambolic nature of the campaigning, the scaremongering and lack of detail and the very timorous nature of the devolution proposals which had been voted on.”
What emerged was an attempt to bridge the divide between the SNP and Labour and dispel the animosity on both sides, bringing together intelligent debate from the likes of Stephen Maxwell, Jack McConnell, Bill Speirs, and Campbell Christie.
This concentration on building consensus around what future devolution would look like, and the formation of the Scottish Constitutional Convention, meant that by the time Tony Blair’s Labour Party replaced the Conservatives in 1997, there was widespread support for devolution.
“By the time it got to that point, it was quite apparent to us in the Yes, Yes campaign, Scotland Forward, that we were going to win.
“Our job at that point was not to entertain the media, our job was simply to get the vote out,” he says. “Because we knew from all our private polling – as well as the public polling done by the media – there was an absolutely overwhelming support for what we had set out.” It is a contrast to the situation now, where with a Yes vote hovering above the 30 per cent mark, the result is a lot less clear-cut.
But he says there are also differences in the way the two campaigns are being conducted.
“I think the frustration just now, and I can understand why, is that there has been no locus really for a convention of an agreement as to what would constitute independence and that’s why we’re still on a daily basis waking up to find that the goalposts have somewhat shifted as to what independence may look like.
“We won’t know until November, until the Scottish Government brings forward its own White Paper, as to what it intends independence to look like – in other words, what would the negotiation of the Government be should the referendum result in a Yes vote.
“I just think we are considerably behind the curve as to where we were when devolution was being debated and by the time the referendum came, I think people were absolutely clear as to the nature of devolution and what powers would be devolved and what wouldn’t.
“I understand of course that it’s one thing to move from a kind of status quo towards devolution and another to move from devolution to independence, I recognise that is probably, in many people’s eyes, a much more significant move.” He adds: “I think we’re at a point now where on the one hand, there’s a clamour for what is almost a national lesson in civics, but you’ve got two groups who quite understandably say, ‘No, our purpose is not necessarily to educate the population in general, or to engage in that debating exercise, our job is to win the debate’.
“We’ll deploy our best arguments as we see fit. If that means scaring people to vote ‘No’ or enticing people to vote ‘Yes’, that’s how we’ll go about doing it.” In this interview at least, he has not picked a side.
“I’m not going to because I’m no longer an active player. But also, genuinely, I really do want to see what is in the White Paper.” But he adds from conversations he has had: “I certainly see minds being changed. In many respects, we have to pay attention to what’s happening south of the border and the assertion had always been that people would be partly driven by a desire not to be associated with or not to be affected by decisions taken south of the border.
“I think that things like the ‘bedroom tax’, the anti-Europeanism, the attack on welfare, these are precisely the kinds of policies which it was assumed would drive people towards a more nationalistic perspective. Somewhat belatedly, this seems to be happening”.
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