Enforcement of environmental law: what is not in the Brexit Bill

20 July 2017 by David Hart KC

I posted recently on the European Union (Withdrawal) Bill and its approach to rolling over EU-derived laws into our domestic law. But a law is only as good as its enforcement makes it, and so we all need to think how this is going to be done post-Brexit. 

NB: there is nothing in the Bill which touches on enforcement; that is for later, if at all.

The issue arises particularly starkly in the environmental field, where there are not so many players with direct legal and commercial interests around (as in, say, equal pay or competition law) to seek consistent enforcement.

A task force within the UK Environmental Law Association (chaired by Professor Richard Macrory and Andrew Bryce, left and right in the pic) has been applying its mind to this enforcement problem, and on 18 July 2017  published a short and powerful report on the issue – Brexit and Environment Law. Its main messages are these.

There are two processes which are likely to disappear, the first the requirement for implementation reports to the Commission, and the second the enforcement role of the European Commission.

As to the first, most EU environmental directives require member states to report on the success or otherwise of their implementation. So to give one example, member states must provide the European Commission with the results of the monitoring of bathing waters under the relevant Bathing Water Directive. The reporting frequency will vary, often every three years, but sometimes annually. The information required is standardised (thus – my comment – preventing “bad news” being spun away or lost in clouds of verbiage)

The UKELA team does not advocate a continuation of this reporting system involving the European Commission; similar reporting should be done to the relevant Parliaments or assemblies – environment being essentially a devolved matter. The data has been generated in the past, and there is no reason why it should not be produced so that anyone interested can assess progress in the state of the environment.

As to the second, the current system of enforcement enables the European Commission to take member states to court if they do not properly transpose directives and if they do not ensure that they are implemented in practice. There is a formal three stage process involving a formal notice, followed by a Reasoned Opinion, followed by the institution of proceedings before the European Court, with the prospect of daily penalties in the event of continuing breach. This system has undoubtedly concentrated the minds of Government in meeting the challenges posed by significant environmental problems. And members of the public may complain to the Commission about potential breaches, free of charge, who will then investigate the position by calling for member state’s responses, including the relevant implementation reports and by looking to the results of any studies the Commission may have obtained.  Importantly, many of these disputes are resolved well before the matter gets to the CJEU.

The Government has not made any proposals for filling this enforcement gap. The UKELA team calls for some form of supervision, without being particularly prescriptive as to what that might be. It considers various forms of Commissioners with environmental functions, including the Future Generations Commissioner for Wales already in place under the Well-Being of Future Generations (Wales) Act 2015. The report also asks Government to reflect on improvements which could be made to the current system of deciding environmental cases, whether by a distinct  Environmental Court or by referring more matters to the First-Tier Tribunal which already hears a ragbag (my words) of environmental appeals – the FTT, generally speaking, has a “no order for costs” rule, in sharp contrast to cases coming before the High Court.

The Government envisages that sufficient residual enforcement will be provided by judicial review, which, in measured terms, the UKELA team rejects. The obvious questions are the prohibitive costs of conventional High Court proceedings, and the short time limits in place. Such cases often turn on complex assessments of environmental data for which technical resources may not be readily available. And anyway, not every environmental problem has an NGO diligently following Government’s response to it. Judicial review is also ill-suited to the sorts of processes which lead many complaints to the European Commission being resolved prior to court.

So the message from the UKELA team is for Government (in fact devolved governments) to think carefully about the mixture of reforms which might make our EU-derived law properly enforced in future. As they point out, the loss of the Commission’s supervisory function may affect the UK as a whole:

having in place equivalent and convincing mechanisms could be important in securing effective trade and other agreements between the UK and the EU where equivalence of enforcement and supervision may well be a relevant issue. (para.36)

My conclusion

No point in roll-over if you do not enforce what you have rolled over. All of the above are very important considerations as we think about how our EU-derived laws are to be enforced in a post-Brexit world.  As I pointed out in my post here, there are attempts in the Bill to get rid of claims by citizens directly relying on EU law, including Francovich claims, which themselves have amounted to  powerful ways of enforcing against Government. Reliance on judicial review, which itself has been under repeated assault from Governments over the last 5 years or so, does not begin to amount to an equivalent to the current system of Commission enforcement. We need to press for some element of independent scrutiny so that it is not just Government commenting on Government’s own environmental performance.