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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.
Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.
The first development is a decision by the CJEU on the meaning of those words.
The second is a new set of rules providing for protective costs orders in environmental judicial review claims. Continue reading →
I argue that both perspectives are misleading in some important respects. While there were some genuine innovations on standing, particularly for associations (which have been covered by others already), the decision on the substance of the Convention rights is far from a doctrinal revolution. Klimaseniorinnen is best understood as an extension of three well-established principles from ECHR environmental cases: (1) the crucial importance of procedural requirements, particularly the exhaustion of domestic remedies, (2) the application of Articles 2 and 8 ECHR requiring regulation and enforcement, including with respect to risks that have not (yet) materialised, and (3) the preference for Article 8 ECHR over the lex specialis in Article 2 ECHR.
Overall, the margin of appreciation looms large in the Klimaseniorinnen and ultimately, the ECHR remains on the outer margins of climate change policy: unless states do not have any greenhouse gas reduction targets, or choose not to enforce them, they are unlikely to exceed the margin of appreciation. Notably, the judgment does not require any particular reduction targets or mitigation measures ([547]), nor does it enforce the Paris Agreement via the Convention ([543]).
Good news from the crisis front, although I’m afraid not the one we’re all thinking of: the government’s Agriculture Bill, which sets out its major post-Brexit agricultural policy, has recently passed committee stage and will soon (coronavirus permitting) be presented to the House of Lords. It shows ambition from the government to develop a post-Brexit agriculture policy with laudable commitments to harnessing the power of farmers to help address the climate crisis, and helps to address issues such as food security. Along with the Environment Bill, discussed here, it constitutes some of the core legislation aimed at achieving the government’s Net Zero by 2050 goal.
The government’s haunting refrain, since their 2018 ‘Health and Harmony’ consultation on post-Brexit agricultural policy, has been “public money for public goods”. The bill puts this into practice by giving the secretary of state power to dismantle the subsidy schemes of the Common Agricultural Policy (CAP) and replace it with the Environmental Land Management Scheme (ELMS). Under this scheme, farmers will be awarded for specific activities with ‘public goods’: good practices that further environmental goals in areas such as biodiversity and soil health that the market does not sufficiently incentivise.
R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment
The development of the principles of access to justice in environmental cases moves on apace.
This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.
McMorn (R, on the application of) v Natural England[2015] EWHC 3297 (Admin) – read judgment
An interesting point arose in this judicial review (for which see Rosalind English’s post here). Could the claimant could get the benefit of an order that any costs he might have had to pay were capped at £5,000? The original judge, Thirlwall J, when granting permission, had refused this costs protection. Ouseley J granted it, though, because the claimant won, the order is academic (short of a successful appeal by the defendant).
This kind of costs protection only applies when the claim is an environmental claim covered by the Aarhus Convention: see a whole list of posts at the end of this one, including the true bluffer’s guide here. The UK has been dragged kicking and screaming into compliance with the Aarhus costs requirements, that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.
But the domestic courts have had some difficulty in deciding what is or is not comes within an environmental challenge.
As we will see, the judge also thought that an Aarhus claim requires a more intensive review of the substantive decision than might have been applied had the claim been a typical domesticchallenge on grounds of irrationality. I deal with that point first.
The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties. A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.
The challenges raise a whole host of issues – the key ones are:
(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;
(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;
(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;
(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;
(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.
Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.
I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 12 March 2014 – read judgment
The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.
At that point, the Attorney-General intervened and signed a certificate saying “no”.
Many readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach ofArticle 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here
So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.
Last week’s post concerned the judicial review costs system in environmental cases and its compliance with the prohibitively expensive rule Art.9(4) of the Aarhus Convention.
Now for some more Aarhus developments which happened over the summer, this time involving the Aarhus Convention Compliance Committee (ACCC) having a pop at the narrow EU standing rules applicable to challenges to an act or omission by a EU body, and the EU not liking those findings at all.
The ClientEarth litigationon air pollution rolls into a new phase, six years after they first began proceedings. This post tells the story.
On 31 May 2017, the environmental NGO ClientEarth announced that it had launched a third round of litigation against the government in relation to air pollution.
ClientEarth have stated that the policy measures set out in DEFRA’s latest draft Air Quality Plan for the UK (the 2017 Plan) do not meet the legal standard, and that more ambitious and far-reaching government action is required.
The 2017 Plan here, which is open to consultation until 15 June (so it ends today), addresses the continuing illegal levels of Nitrogen Dioxide (“NOx”) pollution that are present in both urban and rural areas all across the UK. However, environmental groups have been largely united in their criticism of the 2017 Plan’s limited content. The government had been required by European law to achieve NOx compliance by 2010, but the 2017 Plan now anticipates NOx breaches continuing into the 2030’s.
Currently, 40,000 premature deaths per year in the UK are estimated to be associated with air pollution.
ClientEarth have created an online platform for submitting responses here.
Hard on the heels of the UN-ECE Aarhus Compliance Committee (see my previous post), Lord Justice Sullivan’s Working Party on Access to Environmental Justice has similarly condemned the current system under which judicial review claimants face an onerous costs burden when they advance claims which do not ultimately succeed.
The Working Party reported initially in May 2008 on access to justice in environmental cases, and was critical of the current costs regime. Its current focus is rather narrower that the recent conclusions of the Aarhus Compliance Committee, but potentially more effective thanks to that focus. It reviews the rather fuzzy case-law on Protective Costs Orders, fashioned by the judges to help Claimants against unlimited costs liabilities. The report can be read here.
Evans, R (o.t.a of) Secretary of State for Communities and Local Government [2013] EWCA Civ 114 – read judgment
There have been important pronouncements over the years by the Aarhus Compliance Committee (ACC) about whether the UK planning system complies with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). See my post here for the most important ones, and more are likely to follow shortly (see here). The interest in this domestic planning case is in how the Court of Appeal dealt with those pronouncements, where there is domestic case law going the other way.
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