Deep Dive: Information Tribunal considers tensions between national security and climate change
Cornerstone Climate, Information Law, Public Law and Judicial Review, Planning and Environment
By Jeremy Ogilvie-Harris
The First-tier Tribunal (General Regulatory Chamber) recently considered and handed down a decision on whether the Security Service (‘MI5’) was exempted from disclosing its Scope 1, Scope 2 and Scope 3 greenhouse gas emissions under the Environmental Information Regulations 2004 (‘EIR’) in Cross v Information Commissioner and the Security Service [2025] UKFTT 0073 (GRC).
Scope 1, Scope 2 and Scope 3 emissions are categories of GHG emissions. They were explained by the UK Supreme Court in R (Finch) v Surrey CC & Ors [2024] UKSC 20 at [40] as follows:
“The GHG Protocol classifies GHG emissions using three categories, labelled “scope 1”, “scope 2” and “scope 3”. Scope 1 emissions are defined as direct GHG emissions that occur from sources that are owned or controlled by an entity. Scope 2 emissions are a special category of indirect emissions. This category consists of GHG emissions from the generation of purchased electricity consumed by an entity. Scope 2 emissions occur at the facility where the electricity is generated. Scope 3 encompasses all other indirect emissions. Scope 3 emissions are consequences of the activities of the entity but (like scope 2 emissions) occur from sources not owned or controlled by the entity. Some examples of scope 3 activities given in the GHG Protocol (at p 25) are extraction and production of purchased materials, transportation of sold products, and use of sold products and services.”
Although the Tribunal did not allow the appeal, deciding that the public interest of protecting national security meant that the emissions data should not be disclosed, the Tribunal clearly and unambiguously recognised the impact of climate change and that “urgent action is required to abate further deterioration of atmospheric conditions, to reduce the rise in sea levels and to reduce global-warming”. It follows that, where requests are made for information relating to climate change, this will be a “compelling” factor weighing in favour of disclosure.
The decision is interesting for those seeking environmental information about emissions and climate change and for public bodies dealing with such requests, as well as for information practitioners dealing with the national security exemption.
The request for information
On 13 February 2023, the appellant had sought from MI5 disclosure under EIR of the following:
- The amount of CO2e produced by MI5, broken down by scope 1, 2 and 3 emissions during 2021 and 2022.
- A list of activities that are included in your scope 3 emissions calculation.
On 13 March 2023, MI5 confirmed that it held the requested information but declined to disclose it, relying on regulation 12(5)(a) of the EIR because disclosure “would have an adverse effect on national security”.
Regulation 12(5)(a) of the EIR provides:
(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—
(a) international relations, defence, national security or public safety.
Once the exemption is engaged, there is then an assessment as to whether the public interest falls in favour of disclosure, or withholding the information.
The appellant requested a review but MI5 upheld the original decision on the basis that “the potential for information to be inferred from its carbon emissions data would be of interest to hostile actors, such as estimates regarding energy usage and therefore its computing capabilities […] would adversely affect national security”.
The appellant complained to the Information Commissioner, following which MI5 disclosed a list of activities that made up MI5’s scope 3 emissions as of April 2023 (i.e. part 2 of the request). However, MI5 maintained that the exemption applied and the Commissioner accepted that “the causal link between disclosure and the adverse effect on national security had been demonstrated and that exception 12(5)(a) was engaged”. The appellant appealed to the First-tier Tribunal.
The grounds of appeal
The appellant’s grounds of appeal made the following arguments.
The Aarhus Convention was clear that individuals had the right to live in environmentally safe circumstances and that increased access to environmental information would lead to greater awareness, a free exchange of views, more effective public participation in decision-making and a better environment.
MI5 had not demonstrated a causal link between the disclosure of the information and the claimed adverse effect of that disclosure; nor had it provided any evidence that the adverse effect was more likely than not to occur. Their arguments were based on assumptions and the reality was that it would be difficult to infer MI5’s activities from the scope 1, 2 and 3 emissions. However, if the appellant was wrong on that, in any event, the scope 3 emissions posed less of a risk and should be disclosed. More broadly, the MoD and GCHQ’s scope 3 emissions were already in the public domain and MI5 also published data about its power usage. It followed, the appellant argued, that the exemption was not engaged.
However, the appellant said that, even if the exemption was engaged, MI5’s arguments on the public interest test were “vague, non-specific and not supported by any evidence”. In contrast, the climate crisis was a threat to the welfare of current and future generations alike and urgent action needed to be taken to reduce emissions. The appellant argued that the “vague and non-specific concerns about national security should not override transparency about important climate change issues”.
The Tribunal’s decision
The Tribunal held part of the proceedings in open, but also considered sensitive material in a closed session with MI5. This is common in both Information Tribunal proceedings and national security proceedings (see, for example, the closed material procedure in the Special Immigration Appeals Commission or the Investigatory Powers Tribunal).
In its open decision, the Tribunal first set out the relevant legal framework that applied to the national security exemption under regulation 12(5)(a) of the EIR: paras 32 to 45.
The test under regulation 12(5)(a) was that “a public authority may refuse to disclose information if its disclosure would adversely affect international relations, defence, national security or public safety. This sets a high threshold: the adverse effect has to be more probable than not.”
The Tribunal noted that the term “national security” is not defined in the EIR: para. 36. However, the Tribunal referred to the well-known House of Lords decision, SSHD v Rehman [2001] UKHL 47: para. 36. In Rehman, Lord Hoffman held at para. 50:
“there is no difficulty about what national security means. It is the security of the United Kingdom and its people. On the other hand, the question of whether something is in the interest of national security … is a question of judgement and policy. Those decisions are entrusted to the executive.”
The Tribunal noted that “[a]t paragraph 57 he added that the executive had the benefit of advice and expertise to evaluate that risk. The judiciary should be slow to interfere”: para. 36. Lord Slynn held at para. 15 of Rehman:
“There must be some possibility of risk or danger to the security or well-being of the nation … it is not accepted that this risk has to be the result of a direct threat to the United Kingdom. Nor is it accepted that the interest of national security are limited in action by an individual which can be said to be targeted at the United Kingdom, its system or government or its people.”
The Tribunal also relied on the decision of the Upper Tribunal in APPGER v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC) for the proposition that there was a “need to attach appropriate weight to the evidence from the Government about national security [because] the Government has more information about the circumstances and the Tribunal should be slow to override the views of the public authorities”: para. 37.
However, this was to be counter-balanced with the threshold under the EIR for justifying non-disclosure being “a high one” and it being necessary for sufficient evidence to be provided to support the exemption claimed: para. 38. The Tribunal then set out the well-known principles on the public interest test from Vesco v Information Commissioner [2019] UKUT 247 (AAC): para. 39. Specifically for the national security exemption, the Tribunal referred to Kalman v Information Commissioner & Department for Transport [2011] 1 Info LR 664 at paragraph 47 for the proposition that:
“The reality is that the public interest in maintaining the national security exception is likely to be substantial and to require a compelling competing public interest to equal or to outweigh it”: para. 40.
Drawing the legal principles together, the Tribunal then applied the law to the facts of the appeal. The Tribunal acknowledged that it was conducting a full merits review and that there was a high threshold for relying on the exemption: para. 48. The Tribunal noted that the current national security threat in the UK was “substantial”, meaning that “an attack is likely”: para. 49. This threat “emanates from various hostile actors including home-grown ones”: para. 49. In a context where the government sought to “protect public safety and sensitive information”, the Tribunal held:
“There is no doubt, in the Tribunal’s judgment, that any release to hostile actors of relevant information about the operational capacity of MI5 would adversely impact on national security. The security landscape in the United Kingdom has drastically changed in the last 20 years due to increasing sophistication and complexities in identifying hostile actors, the inherent dangers of electronic information and the increased ability to assimilate large amounts of data.”
As to the particular risk posed if scope 1, 2 and 3 emissions data were released to the public, the Tribunal accepted MI5’s concern about “the ‘mosaic effect’ of disclosure of seemingly harmless information which highly sophisticated hostile actors may be able to piece together to gain a wider perspective on security capabilities”: para. 51.
As to scope 1 emissions, the data could “indicate fluctuations in vehicle use, be compared against the equivalent emission data from other intelligence services and could lead to accurate judgments regarding the level of activity of MI5’s vehicle fleet and the amount of coverage that fleet could provide”: para. 53.
Scope 2 emissions data “would easily allow the calculation of electricity using published conversion factors”: para. 54. In combination with other data, this could “enable a hostile actor to understand how the technical infrastructure of MI5 such as server usage/ computing power was changing”: para. 54.
Similarly, certain types of scope 3 emissions data, such as data related to international travel, “could be used to assess whether and to what extent MI5 are deploying resources to other areas” and there were hostile actors interested in MI5’s operations abroad, such as the presence, or absence, of overseas intelligence: para. 55.
The closed material provided to the Tribunal “amplified the concerns of MI5” (para. 56) and, in particular, dispelled the arguments raised by the appellant (para. 58).
The Tribunal, therefore, “concluded that the emissions data would give an insight into the capabilities and operations of MI5 and that this information would be of assistance to hostile actors, thereby compromising the ability of MI5 to maintain national security”: para. 59.
As regards the public interest in favour of disclosure, the Tribunal held at para. 64 (emphasis added):
“The Appellant put forward a compelling case as regards climate change and the need for organisations, especially public authorities, to implement changes to reduce their carbon emissions as a serious issue now and for future generations. The cogency of these submissions was accepted by both Respondents and equally by the Tribunal. The impact of climate change is almost universally acknowledged and urgent action is required to abate further deterioration of atmospheric conditions, to reduce the rise in sea levels and to reduce global-warming. The issue affects all citizens across the Earth and the impact cannot be understated in terms of its significance. The Aarhus Convention was adopted to provide citizens with this type of information to allow for awareness, debate and informed action. This factor was a compelling consideration to be factored into the public interest test.”
However, this did not outweigh national security for two reasons. First, less weigh was to be attached to the public interest in disclosure of emission data relation to “small specialist arm of the government as opposed to the emissions of the government as a whole”: para. 65. Second, the Tribunal held at para. 66:
“National security issues are dominant and pressing, impacting on everyone, and requiring hyper-vigilance at all times. Terrorism has struck at the core of security and hostile actors remain in eager search of any nugget of information that may assist their cause. The public has a legitimate interest in MI5 not being compromised in its ability to keep the population safe. The Tribunal considered that the disclosure of seemingly harmless information and the mosaic effect of piecing together information to be at the core of this appeal. MI5 had confirmed that hostile actors were increasingly sophisticated in their use of raw data and data collection.”
For those reasons, the Tribunal dismissed the appeal.
Comment
This is a fascinating decision because the Tribunal is required to balance two compelling and competing public interests: national security versus climate change. Those following national security litigation more broadly will not be surprised by the result. For instance, in R (Begum) v SSHD; Begum v SIAC [2021] UKSC 7, Lord Reed for the majority of the Supreme Court held at para. 110 that a right to an effective appeal of a decision depriving a British citizen of their citizenship is not a “trump card” that outweighs national security concerns: see also para. 90 to 94 of that decision. Similarly, the Tribunal has held that the public interest in mitigating climate change does not outweigh national security.
It is important to note that the Tribunal has joined a series of courts, both domestically and internationally, in recognising the impact of climate change and the vital importance of mitigating it by reducing carbon emissions. Given the “compelling” weight that is to be accorded to climate change considerations in the public interest test, it is unlikely that many EIR requests can be refused where the information or data requested relates to climate change. Those seeking such information can, therefore, take some hope away from this case that in less difficult contexts, there will be a much greater chance of obtaining disclosure of data relating to carbon emissions or otherwise. Public authorities who hold such information will, when dealing with requests for its disclosure, need to consider carefully the compelling weight that should be given to its disclosure.
About the Author
Jeremy Ogilvie-Harris is a public law and human rights barristers at Cornerstone. He has experience of advising, assisting and representing individuals, campaign groups and local authorities on planning, environment and climate issues. He also has experience of national security issues and played a role in the amendment of section 10 of the Nationality and Borders Act 2022 during its passage through the House of Lords, which ensured that the Act provided for a greater level of procedural fairness in citizenship deprivation decisions.
