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« How to Starve Africa: Ask the European Green Party | Main | What New Scientist wouldn't print »
Monday
Jun062016

Upper Tribunal Decision

Guest post by David Holland

I have temporarily put on the Internet a scanned copy of the decision of the Upper Tribunal to refuse my appeal in regard to my request to the University of Cambridge.   I have also posted my oral arguments to that Tribunal.   Naturally I entirely disagree with this decision as well as the First Tier Tribunal refusal in regard to the ZODs held by the Met Office, which was discussed at CLB.   The Upper Tribunal refused me permission to appeal it.   Taken together these two decisions largely if not wholly exempt climate change information from the EIR.

I am not inclined to pursue either judgement and shall leave it to readers to make their own judgment as to why the climate scientists involved in these two cases do not want to disclose the environmental information they hold.

 


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Reader Comments (71)

"You may remember that “Private Capacity” was the excuse first used by the Met Office for not disclosing John Mitchell’s AR4 IPCC work."

I do indeed remember the stonewalling you've received from these organisations, and support what you're trying to do. I can't speak for every case, and I'm not supporting keeping things sacred, just in this case, IF Wadhams was acting in a private capacity i.e. not doing the work as part of his university duties AND having taken on the work without the telling/asking permission from the university, then the university has no right to provide information, even if held on their computers, to third parties.

I am not supporting the reprehensible lack of transparency common in the climate science community one iota just stating what I believe is the universities legal position.

Jun 8, 2016 at 6:36 AM | Unregistered Commentergeronimo

On a different tack but with a minor connection, I believe that most people are unaware that Cambridge made an early hid for CRU to move, lock stoke and barrel, from UEA. This was firmly resisted. I found it an interesting mental exercise to ponder what would have happened if Cambridge had been successful.

Would Climategate have ever happened if Cambridge procedures had operated?* No disclosue of the e-mails. World unaware of shenanigans within climate science.

If emails were released, would Cambridge have been any better at clearing up the mess, particularly by instituting more effective committees? Or would the same cover up have happened?

If it had been more effective, would future events, like this Wadham affair, have been even possible?

One definite outcome would be that UEA's reputation would be pristine, and its School of Environmental Sciences would still have its good name. I would have been able to teach my material without hassle and you would never have heard of me.

Would the world be a better place if Climategate hadn't happened?

* Because CRU was largely funded by outside money, I suspect university supervision of it by Cambridge would have been little different, but computer security might have been.

Jun 8, 2016 at 8:37 AM | Unregistered CommenterAlan Kendall

Alan Kendall, I was definitely not aware of that!

As you say, the list of "what ifs" is extensive. Phil Jones could have skated on thin ice with Wadham and both would have been surprised that the other did not fall through.

I am guessing that CRU did not stay at UEA because of its history and architecture. Was it all down to money, a political forcing in climate science more powerful than CO2?

Jun 8, 2016 at 9:02 AM | Unregistered Commentergolf charlie

dfhunter,

Thanks for the link to The Haldane Society. I had searched for the judge’s background but missed that. Now having dug a bit further I found this link to the June 2014 Society Magazine, which strongly suggests what her views on climate change might be.

With regards to other comments it might be worth pointing out matters that are not so widely known. I was persuaded to ask the Met Office for the AR4 ZODs by one BH reader and the AR5 Review Editor’s by a different BH reader. It never occurred to me after Climategate that they would not be disclosed. The University of Reading disclosed its reports properly and promptly. Then I learnt that AR5 had made it clear that it would not be releasing them and from a leaked copy of Wadhams’ report saw one possible reason why, and decided to ask Cambridge for it. When that was refused I asked DECC. In its final refusal letter it stated:

“The IPCC placed the Review Editor’s reports along with other documents in a restricted online database during the Stockholm meeting for use by national delegations. The DECC team does not have a copy of these documents and does not hold them for the purposes of the Environmental Information Regulations 2004.”

What DECC did not mention was that they were at liberty to download the file from the database but every page would uniquely identifiable and the email address would be in the document properties to dissuade whistle blowers. The argument that DECC does not hold them for the purposes the EIR is the same disputed argument made by Cambridge that has now been upheld by the ICO and the Upper Tribunal.

As important, the first part of what DECC state explains the truth concerning the evidence that the Met Office and Peter Stott gave to the First Tier Tribunal and which wrongly persuaded it to refuse to disclose AR4 ZODs . In its paragraph 17, of the only evidence for its decision, it stated:

“He [Peter Stott] confirmed that concerns over the unauthorised release of information relating to the previous report had led to change in working practice, reducing the amount of information provided to authors on “memory sticks”.

This was not evidence of damage to international relations as was claimed but evidence of the decision by Thomas Stocker to change the open manner in which information had hitherto been distributed to one which he hoped would be immune to the effects of the Aarhus Convention.

As a penutimate point how many BH readers were aware that Thomas Stocker was the Head of the Swiss Delegation to the IPCC and used his position to push for the confidentiality decision taken in May 2011 contradicting the advice of the IAC and the IPCC’s Principles? In fact he pushed for more but in the heavily reacted email to the Met Office, Stocker admitted that he had failed to get his way. If you remember, Stocker was at one time widely tipped to take over from Pachauri.

I said I was not inclined to pursue these decisions. This is because I have come to end of the low cost, low risk, action that I can take. As Sir Jeremy Sullivan has pointed out the cost of justice in the UK for the all but the impecunious and the very rich breaches our Aarhus Convention rights. I could, and indeed if I can find the time might, send a communication to the Aarhus Convention Compliance Committee, but it has ruled against the UK and others very often but has no power to correct decisions. The Guardian, GreenPeace and Friends Of The Earth have shown that, usually, only a well-funded professional team of the best lawyers get real justice here.

We need a deep-pocketed White Knight

Jun 8, 2016 at 10:58 AM | Registered CommenterDavid Holland

The Guardian, GreenPeace and Friends Of The Earth have shown that, usually, only a well-funded professional team of the best lawyers get real justice here.

We need a deep-pocketed White Knight

Jun 8, 2016 at 10:58 AM | Registered CommenterDavid Holland

They won't always be well funded. Not sure why you really want funds for legal shenanigans as it doesn't progress anything really. Nobody wants to voluntarily give money to lawyers do they?

Jun 8, 2016 at 2:40 PM | Unregistered CommenterRob Burton

Rob Burton, I think that is one of the points that David Holland is making. Lawyers agree that 97% of climate science is good for fee income. Lawyers are very happy about it, and climate scientists don't want to see a hiatus in the flow of other people's money. They all Shill for the lucrative Big Green Blob.

Common Sense is not valued in the current climate of politicised climate science, and having a budget to fight for fairness and common sense, has been deemed to be politically incorrect.

Jun 8, 2016 at 4:07 PM | Unregistered Commentergolf charlie

Hmm, Here in the US the question would be, did this professor use his personal email or his office. The answer would be plain if he used his office email. Im not sure how Britain rules on such things, but since it seems pretty unlikely to me that he did all the work on the subject during non-working hours using only his own resources, and no university resources, this decision is simply wrong.

Jun 8, 2016 at 4:20 PM | Unregistered CommenterAndrew Kerber

David Holland wrote: "What DECC did not mention was that they were at liberty to download the file from the database but every page would uniquely identifiable and the email address would be in the document properties to dissuade whistle blowers. The argument that DECC does not hold them for the purposes the EIR is the same disputed argument made by Cambridge that has now been upheld by the ICO and the Upper Tribunal."

If I understood paragraph 47 correctly, the Tribunal suggested that Cambridge would "hold" an email related to university business (grading) if it came in through a university server, but the university was not considered to "hold" an email related to the personal business of a professor (a bank statement). And, of course, they argued that Professor Wadhams was working with the IPCC as an individual, not a university employee. (Given that a skeptical professor could be working for the NIPCC, this is an argument I respect.)

However, DECC can not logically claim that any IPCC records it may hold are unrelated to THEIR business. Once a record entered their server, the argument in paragraph 47 would not apply - whether or not that record was tagged to discourage whistleblowers. Such tagging wouldn't change DECC's obligations to the British public (unless the government wanted to invoke the Official Secrets Act to prevent damage to international relations). And, if they have electronic access to records, but have chosen not to access such records in a manner that would leave a record on their servers, I would say they have received that record by simply having received electronic access to that record. If a letter is delivered to your post office box or an inbox where you work and you chose not to touch that letter, you have still received that letter whether you physically removed it from the mailbox, post office box or inbox. In this case, the receiving mailbox/inbox may physically reside on an IPCC server outside the country, but as long as DECC can access that server, I'd say they hold the information. The password to the server functions as a key to a mailbox.

These arguments based on paragraph 47 don't mean that there aren't other barriers to disclosure in other paragraphs. The UEA successfully (and shamefully) claimed that the investigation into the Climategate emails was performed by an independent group and that they held no records of that group's work except the public reports. Choosing not to have access to records related to public business is an unethical way to avoid releasing them.

Jun 8, 2016 at 4:25 PM | Unregistered CommenterFrank

Andrew,

I think it is plain here also in regard to the second item of my request, which was for information "on" his reports including any relating to its distribution or disclosure. As he only gave AR5 WGI his University details and email address he, at least, had to get by post or email his appointment and login details for the WGI server. Cambridge used the standard, but wrong in law, dodge of pretending that information on environmental information is not itself environmental information. Despite my assertions on this point, previously accepted in other cases and supported by the Aarhus Implementation Guide, the Tribunal upheld the view of the ICO and Cambridge that it need not even look for that information or any Review Editors' reports.

The Aarhus Implementation Guide, to which I referred in my oral arguments (and linked to at the start of this thread) and to which all Aarhus parties have agreed is unambiguous. All information held by public authorities is held on behalf of the public and is not limited, as Cambridge argued, that which was "generated by or falls within the competency of the public authority". The Guide is also clear that it relates to information "effectively held" on a remote server as well to that physically held.

Jun 8, 2016 at 4:50 PM | Unregistered CommenterDavid Holland

Frank,

You are absolutely right. DECC were wrong, in law, to refuse my request. It is well established here that using gmail for official public authority business does not prevent courts ordering its disclosure. I also made a request to Wadhams in person who did not even acknowledge it. If he had done the work privately he was a public authority under the Aarhus Convention. I chose not to pursue DECC or Wadhams when DECC confirmed, eventually, that Wadhams did not apply a private individual from his home address as did many Expert Reviewers but only one retired lady as a member of a writing team.

As I pointed out to the Tribunals Wadhams is an officer of the University as opposed to tenured or emeritus and their is a veritable mountain of public evidence that Cambridge (which has published all the IPCC reports) is up to its neck in climate change work and he was doing exactly what was expected of him. The First Tier Tribunal decision (discussed previously here) was utterly perverse. It decided that if it's not in the employee's contract of employment it is not held for any any purpose of his employer. However overturning even blatantly perverse decisions is about as easy as getting the NHS to own up to its errors.

Jun 8, 2016 at 5:19 PM | Registered CommenterDavid Holland

"Taken together these two decisions largely if not wholly exempt climate change information from the EIR."

Does not follow.

Jun 9, 2016 at 2:23 AM | Unregistered CommenterEli Rabett

Eli Rabett, climate science does not follow basic principles of science, and has to subvert the Law for protection.

It is interesting how the Freedom of Information Act is being used in the UK to prevent access to the information used by the UN, which should be freely available

This contrasts with the US, where Climatologists have tried to use RICO legislation to bring prosecutions, but may end up in court themselves.

Two different countries with two different Legal systems, and climate scientists have to resort to the Law to make up for their lack of science, and the evidence to back it up in court.

Climate Science needs more honesty and openness to demonstrate it can be trusted to produce reliable science. Going to great lengths to obstruct honesty and openness, may mean there is no reliable and honest climate science to be open about. Mann really ought to be encouraged to be more open, and go to court, so a good example could be set.

How will climate science be communicated without loyal Paid Shills being funded to defend the indefensible lack of science, despite all the money they have previously had? I don't know about the US, but NGOs, charities, lobbyists etc have been a useful means of political campaigning outside of FOI disclosure rules.

Jun 9, 2016 at 7:39 AM | Unregistered Commentergolf charlie

So Eli - how does one secure release of information in a case such as this?

Jun 9, 2016 at 8:43 AM | Unregistered Commenternot banned yet

Eli,

The basis of the decision on the Met Office request was that despite the Aarhus Convention, its Almaty Guidelines, the the IPCC "Principles" requirement for openness and transparency, and the IAC advice to the IPCC to emphasize it, the AR5 WGI writing team of scientists had agreed among themselves to not to allow any disclosure ever of their communications. Peter Stott and the MO argued that breaking the WGI overarching principle would, as opposed to might, cause damage to international regulations and cause WGI to reconsider its working arrangements with the UK.

As there have been many voluntary disclosures breaching the WGI Omertà since it was decreed in 2010 there must be some evidence of the damage. The only evidence before the Tribunal was that in AR5 less information was being distributed on memory sticks. What Peter Stott, who should have been telling the whole truth, should have added was that information was now being distributed by a password-protected server and watermarked files.

Will AR6 WGI continue to state that the AR5 Omertà is one of its “overarching principles”? I have asked the question but received no reply. Why would anyone trust the IPCC if it cannot enforce its own procedures.

As for the Cambridge decision, how many members of IPCC writing teams are employed under contracts of employment that require them to volunteer to serve the IPCC process? For the purposes of the EIR, or the Directive they implement, the Tribunal has ruled that public authority employers do not hold any information that employees send or receive unless it is in connection with a requirement written into their contract of employment.

Jun 9, 2016 at 11:45 AM | Registered CommenterDavid Holland

If I were made a professor, and paid the same dosh as 'Waddy' , I would write papers claiming that the sky was going to fall in on us in a few months. Apart from writing horoscopes, I cant think of anything that could be easier

Jun 9, 2016 at 12:56 PM | Unregistered CommenterEternalOptimist

"Taken together these two decisions largely if not wholly exempt climate change information from the EIR."


Whether you can extract your rent in this case says nothing about the general case.

Jun 10, 2016 at 4:01 AM | Unregistered CommenterEli Rabett

Eli Rabett,

Gavin Schmidt and other Real Climate Scientists don't feel very happy about the quality of Wadham's work. Wanting to keep it all hidden from public scrutiny is understandable.


"One talk was given by Prof Peter Wadhams, who is known for his statements that the Arctic ice will disappear completely around 2015, often promoted unquestioningly byirresponsible journalists. When Wadhams gave his talk, a number of climate scientists sent out critical tweets, as noted at the time by Bishop Hill. Here are a few of these:

@icey_mark: Wadhams uses photos and anecdote to imply state of sea ice across the Arctic.

@icey_mark: Wadhams: uses UK submarine data to look at thickness but very very data poor. Not credible plots

@ClimateOfGavin:  Wadhams still using graphs with ridiculous projections with no basis in physics.

@ClimateOfGavin:  Wadhams clearly states that there is no physics behind his extrapolations.

@Ed_Hawkins: Good to see Wadhams extreme views challenged by other climate scientists. Disappointed he didn’t agree to bet on 2015 sea-ice!

@ClimateOfGavin: In case there was any ambiguity, statements by Wadhams on arctic sea ice/CH4 trends are *not* widely agreed with by scientists

@nathanaelmelia:  Entertaining break with Wadhams. Back to science now

@jamesannan: Hasn’t Wadhams already predicted 4 of the last 0 ice-free summers?"


When did Real Climate Scientist experts realise that Wadhams was causing more damage to Climate Science than CO2 was doing to Arctic Ice, and that the IPCC already included some of his previous work?

It must be a real relief for dodgy scientists to know that really dodgy climate science secrets can still be kept secret.

Jun 10, 2016 at 6:43 AM | Unregistered Commentergolf charlie

And what is the "general case" Eli?

Jun 10, 2016 at 12:14 PM | Unregistered Commenternot banned yet

With all due respect to David Holland, I think this is a fantastic ruling. yippee.

When the Californian or NY state AG get me arraigned under the ROCO laws for being a 'denier', my defence will be that I was only denying in my spare time

Jun 10, 2016 at 1:39 PM | Unregistered CommenterEternalOptimist

EternalOptimist 1:39 That is a very interesting point! The Law of Unintended Consequences may have a new Legal Precedent.

If some people have been paid by the Government ( taxpayer) to tell lies to the Government (taxpayer) about climate science, so the Government can lie to the taxpayer, who can plead the Nuremburg Defence in any trial for fraud corruption and/or incompetence?

Jun 11, 2016 at 3:41 PM | Unregistered Commentergolf charlie

EternalOptimist.
Unfortunately the counter to your defence might be to incarcerate you all your spare time.
You might want to set up a denialist religion and claim you were merely following its sacred teachings. Separation of church and state is useful here. But remember -
"No one escapes the climate inquisition"

Jun 11, 2016 at 7:19 PM | Unregistered CommenterAlan Kendall

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