In the latest of his blog entries, CIWM’s chief executive, Dr Colin Church looks at enforcement and compliance post-Brexit and identifies three reasons to be worried if you care about environmental protection…
One of the many issues exercising minds about the implications of UK leaving the EU is how the UK’s implementation of EU-derived legislation – especially environmental legislation – will be overseen. Currently, this is done by the European Commission (EC – in its ‘guardian of the treaties’ role) and the Court of Justice of the EU (CJEU) through the ‘infraction’ process and, potentially, significant fines. The UK Government has made it clear it doesn’t want that to continue after Brexit. It says that firstly, of course governments will comply with the law and implement it (or ensure it is implemented) correctly. It then goes on to say that the existing scheme of judicial review, coupled with Parliamentary scrutiny, is sufficient guarantee that the right things will be done at the right time.
Why are many in the environmental sector sceptical that this is in fact enough?
One place to start to understand this is the general levels of trust in authority in modern UK society. Various surveys repeatedly show trust in Government is towards the bottom of the rankings. Given this, it is perhaps not surprising that assurances that Government will do the right thing are not automatically accepted, however unfair that may be. And even if people could trust today’s Government, surely one thing history teaches us is the importance of hoping for the best but preparing for the worst?!
Another perspective is to look at what the track record shows. Whilst the UK has traditionally prided itself on timely transposition of EU law into domestic rules, and rigorous implementation, and was a leader of efforts to focus on this across the EU in the late 1990s and early 2000s, the reality is less clear-cut. A review by Lord Davidson QC back in 2006[1] found that “evidence to support assertions that the UK implements and enforces more rigorously than other Member States is often lacking. Furthermore, the review heard similar concerns about their governments from business representatives in other European countries.”
Historically, the UK has had more infringement proceedings than the EU average (27 pending cases in 2016 compared to an EU average of 24)[2].
There are also specific and high profile examples of failure to properly implement law such as controls on the treatment and release of sewage[3] and the UK Government’s failure to protect human health and the environment from the harmful effects of air pollution from nitrogen oxides. In both cases, many argue that the UK Government ‘dragged its heels’ in implementing the law and has only moved to do so under threat of legal action and potentially fines.
A third perspective is the ease (or otherwise) of taking legal action against an act or omission of a public authority through the judicial review (JR) process. There are two aspects to this.
The legal argument. The grounds on which a JR can be brought are limited[4] to questions of lawfulness and not merit. In addition, the EU (Withdrawal) Bill says that general principles of EU law (which one imagines include principles such as precaution and the polluter pays) will not in future be allowed as grounds for legal challenge. In contrast, under the current system, an NGO (or an individual citizen) can complain to the EC about an issue and the latter will investigate it, potentially from both the lawfulness and the merit perspective, and certainly in the light of applicable general principles. The future arrangements on the face of it therefore appear more constraining.
The financial aspects. The UK is a signatory to an international treaty (the Aarhus Convention) covering access to environmental justice. This states that members of the public should be able to challenge environmental decisions, and the procedures for doing so must be adequate and effective and not prohibitively expensive. In the past, the Convention’s Compliance Committee has criticised the JR costs regime in England and Wales as not being in line with this obligation[5]. Recent changes made to the JR regime have been widely interpreted as making it harder and more risky for charities (such as environmental NGOs) to get involved, either bringing them in the first place or joining in to provide expertise. Most recently, this has included allowing courts to place a greater cost burden on litigants at any point in the process, an approach also criticised by the House of Lords Secondary Legislation Scrutiny Committee[6] and subject to legal challenge.
Overall, then, there seem to be three good reasons why so many in the environmental field are concerned about the perceived post-Brexit ‘governance gap’ for environmental legislation. This seems likely to become a significant issue in the passage of the Withdrawal Bill through Parliament, and potentially beyond that into the future.
