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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retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment wolves women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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