Environmental compliance body urges major changes to law

8 December 2010 by

This time two years ago two obscure environmental groups,  Clientearth and the Marine Conservation Society , took a step that may make more difference to the enforcement of environmental rights in this country than all the recent high-profile “green” NGO campaigns put together.

They submitted a complaint – euphemistically called a “communication” – to the enforcement body of the Aarhus Convention, a treaty which lays down baseline rules for proper environmental justice in the EU, alerting it to various shortcomings in the legal system of England and Wales (inelegantly but conveniently referred to in the report as E & W). Perhaps because this is a relatively new procedure, perhaps because environmental issues are very much flavour of the moment, but the communicants were not modest in their complaints – just about every facet in the structure of public litigation came under criticism. In the intervening months the 2008 Sullivan Report has come out and a number of cases have raised the question of the compatibility of the E & W costs regime with Aarhus in environmental challenges.

Now the Aarhus Compliance Committee has published its final findings in the Port Tyne case, Defra has recently completed a consultation on the measures taken by the government to implement the Aarhus Convention, and the Ministry of Justice last month brought out a report on the issue of cross undertakings in damages and its possible incompatibility with the Aarhus requirement that the assertion of environmental rights should not be “prohibitively expensive”.  Once all this has sunk in, along with the findings of the Compliance Committee, we may find some root and branch changes being made to the procedures available to parties and individuals wanting to bring environmental challenges in the courts.

Briefly, the communicants claimed that for a number of reasons they had not been able to challenge a governmental licence issued to Port Tyne in northern England that would allow for the disposal of highly contaminated dredge materials approximately four miles off the coast.

Environmental rights

This case is interesting as a reflection of the growing assertion of what can broadly be termed “environmental rights” and the increasing pressure to persuade the courts that the standard of review for environmental complaints should be adjusted to the pattern set by human rights cases and challenges taken under EU law.

In August David Hart QC posted an analysis of the provisional findings of the Committee in this case and another communication involving similar issues. His post focussed on the advantages and disadvantages of the Protective Costs Order regime in this communication; but the complaints ranged more broadly, covering lack of substantive review in procedures for judicial review, the very wide discretion enjoyed by judges in determining the allocation of costs, the lack of rights of action against private individuals for breaches of environmental laws and the restrictive time limits for judicial review. The three substantive matters which concern us here are:

  1. scope of judicial review
  2. judicial discretion on costs
  3. challenging private parties

Scope of JR

The communicants submitted that  the courts of E & W have very restrictive rules regarding judicial review, allowing review of public acts and decisions only in cases of procedural impropriety, illegality or proportionality. Now courts are routinely faced with challenges under the 1998 Human Rights Act, as well as EU law in general, they have to apply the test of proportionality which permits to an extent a review of the substance of the case. The communicants contended that, to comply with the access to justice provisions under Article 9 of Aarhus these broad principles should be applied in environmental cases where judicial review is sought.

What would this mean in practice? The Port Tyne situation is a good illustration of the difficulties this presents to environmental challengers. Restricted as they were by the traditional grounds for judicial review, the communicants had no opportunity to challenge the lack of a full environmental impact assessment, the failure of the authorities to provide evidence to support the elected disposal method as following the best available technique, the danger posed to the marine environment and so on. In their communication to the Committee, they suggested two ways of adjusting the law of England and Wales to ensure compliance with Aarhus: either

  1. to add Aarhus cases to human rights cases providing a separate ground for judicial review (with its broader scope and test for proportionality) or
  2. to come up with a new enactment, an “Aarhus Act” akin to the HRA 1998, which would reinforce environmental cases as a separate ground for JR

Although the Committee made no observations on this recommendation as such, it did uphold this part of the communication.  It was “not convinced” that the legal system of England and Wales meets the standards for review required by Aarhus as regards substantive legality. Noting the very high threshold for review imposed by the Wednesbury test (see criticisms of this by the House of Lords in R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26,[2001] 2 AC 532  and the Strasbourg Court in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para. 138) the Committee considered

that the application of a “proportionality principle” by the courts in E&W could provide an adequate standard of review in cases within the scope of the Aarhus Convention. A proportionality test requires a public authority to provide evidence that the act or decision pursued justifies the limitation of the right at stake, is connected to the aim(s) which that act or decision seeks to achieve and that the means used to limit the right at stake are no more than necessary to attain the aim(s) of the act or decision at stake.

Although it was clear that they did not find domestic law up to scratch on this, the Committee did not go as far as to find a violation of Article 9(3). This may have been because the communicants were deterred from going through judicial reveiw at all – and therefore could not complain of its inadequacy except in abstract. In any event, in its reasoning the Committee has been spurred on to make the above recommendation, although whether there is sufficient will to follow this recommendation is open to doubt, particularly in view of the potential difficulties of distinguishing environmental cases – which attract the proportionality approach – from “run of the mill” judicial review cases, which would not. As David Hart observed in his post –

The domestic judiciary has readily absorbed that [proportionality] test in EU cases, where the test is laid down by the formally dominant rulings of the ECJ. Whether it will be quite as meek in the light of the Committee’s decision must be very much more doubtful. The decision of an international law body, however persuasive, will not automatically be followed, as we have seen time and time again as our courts “distinguish” decisions of the Strasbourg Court in controversial areas.

Judicial Discretion on Costs

The communicants also argued that the rule set out in 44.3(2) of the Civil Procedure Rules that “costs follow the event”, and the requirement for a cross undertaking in damages, rendered any challenge such as theirs  “prohibitively expensive”, contrary to Aarhus Article 9, paras 4 and 5.  The Committee upheld this aspect of the complaint as well and the implications of these findings are discussed in some detailed by our previous posts on the subject (references at the end of this article). But costs were also part of a wider submission by the communicants, that the broad judicial discretion on the allocation of costs in environmental cases did not satisfy Aarhus requirements. They pointed to the ECJ case of  EC v Ireland (C-427/07) in which it was found that, in the absence of binding legal provision requiring procedures not to be prohibitively expensive, discretionary practice on the part of the courts did not adequately implement Directive 2003/35/EC on Access to Justice. Insofar as the principles set out in the Aarhus Convention are part of EU law, the communicants submitted that the considerable discretion enjoyed by the courts in applying the Convention principles in their decisions regarding costs allocation meant that there was inadequate compliance.

This particular challenge raises all sorts of interesting questions, not least of which the extent of the Compliance Committee’s jurisdiction to give an opinion on EU law, and whether Aarhus has become directly effective in domestic law.   Whilst it is true that Aarhus is only potentially part of domestic law by virtue of the European Community itself being a party to the Convention,  its provisions are not  – or not yet – sufficiently developed within EC case law so as to have direct effect in domestic law.  Indeed  this question has already come up for consideration in an EU case –  Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (C-240/09 ) – which has yet to be decided by the ECJ. It is clear from the AG’s opinion that the Convention is not yet considered directly effective.  The wording of the relevant parts of the Convention may be sufficiently clear and precise, but as the Advocate General pointed out, in the EU’s accession declaration it stated that

Member States are responsible for the performance of these obligations at the time of approval of the Convention by the European Community and will remain so unless and until the Community, in the exercise of its powers under the EC Treaty, adopts provisions of Community law covering the implementation of those obligations. (annex to Decision 2005/370)

There is some very instructive material in this case about treaty obligations, where the EU, rather than the national government, is the signatory.  Not all treaties need to be implemented in national law before they take effect. But if the rights or freedoms they contain are sufficiently “certain, precise and unconditional” they may be “directly applicable”. However in this case the Slovak republic argued that the Aarhus provisions, in themselves, do not contain any unequivocally drafted fundamental right or freedom which would be directly applicable, in the sense of the ‘self-executing’ theory used in public international law, to public authorities.So the Convention requirements are not “conditional” –  one of the essential requirements for direct effectiveness.

Challenging Environmental Breaches by Private Individuals

The communicants claimed that the English system fails to provide sufficient access for members of the public to administrative or judicial procedures to challenge acts or omissions by private persons which contravene provisions of national law relating to the environment and as such this discloses a breach of Article 9, paragraph 3 of the Convention. The availability of criminal prosecutions do not satisfy this requirement because in most cases breaches of environmental laws do not amount to criminal offences, and even if they do the state prosecutor is at liberty to drop the prosecution once it has been taken over.The  communicants pointed to the suggestion in the Aarhus Convention Implementation Guide that the rights of action against private individuals under article 9, paragraph 3, of the Convention may be administrative or judicial procedures, i.e. they do not necessarily have to be a court process and can be in the form of director indirect enforcement. However,

for indirect enforcement to satisfy this provision of the Convention, it must provide for clear administrative or judicial procedures in which the particular member of the public has official status. Otherwise it could not be said that the member of the public has access to such procedures.

Indeed it was argued that in other EU states it is quite common to allow the acts and omissions of private persons to be challenged.  In France for example registered environmental organisations may act as plaintiffs in criminal proceedings and also bring civil claims against private persons where environmental laws have been violated. It was argued that England and Wales should follow this approach and that this could be done by amending the law on judicial review or by extending the new Regulatory Enforcement and Sanctions Act 2008 to include NGO rights of enforcement in public interest cases.

The Committee considered the options available to parties wishing to report potential or alleged breaches of environmental legislation:

  • communication to the appropriate regulator such as the Environment Agency which may or may not lead to an abatement notice
  • a nuisance action under Section 82 of the Environmental Protection Act in the magistrates courts
  • a nuisance action in the civil courts
  • a negligence action
  • an action, in the appropriate case,  based on Rylands and Fletcher
  • a private prosecution for example a breach of a waste licence or harm to protected animals-
  • a complaint to the Parliamentary Ombudsman or local authority ombudsman of maladministration on the part of whichever public body has failed to take enforcement action

In the light of the above, the Committee did not find that the legal system of England and Wales provided insufficient means to challenge acts of private individuals that breach the rights enshrined in the Convention. But on most of the other complaints, the communicants were successful; the Committee found that by failing to ensure that the costs for all court procedures subject to Article 9 are not prohibitively expensive, and in particular by the absence of any clear legally binding directions from the legislature or the judiciary to this effect, Engand and Wales failed to comply with Article 9 para 4; that by not ensuring a clear minimum time limit for the filing of an application for judicial review there had been failure to comply with Article 9 para 4 and it has put down a clear marker registering its disapproval of the rigidity of judicial review procedures and the lack of proportionality review to make environmental challenges more effective.

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