The UK and Environmental democracy – the Aarhus end of nowhere?

!chatton colourCarol Day is a solicitor at WWF-UK. She originally trained as a nature conservationist and worked on policy with The Wildlife Trusts and WWF-UK, but converted to law in 2002. She now advises in-house policy staff on the law around marine and fisheries, species and habitats, freshwater and access to justice. She often ponders the irony that any direct experience of nature is now reserved for the weekends.

 

Denmark. Home of great things – bacon (for the non-vegetarians), gritty detective series and a little known legal instrument called the UNECE Aarhus Convention, named after the city in which it was signed in 1998. Until a few years ago, hardly anyone had heard of it – but it is rapidly becoming one of the most important environmental laws around (and thus ripe for Government attack).

The Convention sets a benchmark for ‘participatory rights’ in environmental matters – including access to information (“the right to know’), public participation in decision-making (‘the right to get involved’) and access to justice (‘the right to challenge’). The UK ratified the Convention in 2005 – as has (now) every EU Member State and the European Community in its own right. The Convention has working groups centred around the three ‘pillars’ (as they are often called) and a novel compliance mechanism, in which individuals and groups are afforded equal rights of participation as contracting Parties.

The UK was a driving force in the drafting of the Convention, believing everything in the UK garden was rosy. However, it would appear, unlike those ‘Neanderthal backwaters in Eastern Europe’, that the UK has rather a problem with the Convention. And the picture looks set to get a whole lot worse with the Government’s continuing war on Judicial Review.

Cement_plant_Oct_2012The main thorn in the UK’s side is the requirement that legal review procedures in respect of environmental issues must be “fair, equitable, timely and not prohibitively expensive”. Initially, the Government thought the “not prohibitively expensive” bit related to the fees for lodging a Judicial Review in court. Not so. It has subsequently been held to include all the costs in a case, including your legal fees, your opponent’s legal fees if you lose (thanks to the established principle that costs “follow the event”) and any ‘bond’ required by the court to secure an injunction. And we’re not talking peanuts. Consider the plight of Lilian Pallikaropoulos in Rugby, who faced a costs bill for just under £90,000 for losing a case concerning the legality of a cement works in Rugby – or Marco McGinty in Scotland, who faces a bill of £30,000 for challenging the (now withdrawn) Hunterston power station – or the residents of Merthyr Tydfil, who were served with a costs estimate of £257,104 in respect of pre-action costs by open-cast coal operator Miller Argent. These brave individuals risk huge personal loss to challenge the legality of the decisions of public bodies in the interests of protecting the environment. And it is right that, where they have an arguable case, they are enabled to do so.

Thankfully, both the Aarhus Convention Compliance Committee and the European Commission consider the UK in breach of the Convention and EU law on costs, the Commission inexorably dragging the Government to the European Court following a complaint by a coalition of NGOs in 2005. Although the wheels of EU justice turn slowly, the weight of international concern has forced the Government in England and Wales to amend the law on costs in environmental cases. As of 1st April 2013, an individual’s liability for the costs of a public body is capped at £5,000, that of a group at £10,000 and a bond will now only be required in exceptional circumstances. Whilst not perfect, these changes mark a real improvement and should be welcomed (and used wisely).

The trouble is, when you win one battle the Government invariably clamps down elsewhere. On 23rd April, the Government announced a reduction in the time limit for applying for JR in planning cases from a three months maximum to six weeks and a ban on people seeking an oral hearing if their initial written application is ruled ‘totally without merit’ (as was the case in the Friends of the Earth solar case – which ultimately went on to be successful in the Court of Appeal). We have yet to see one shred of evidence to support the purported relationship between JR and ‘the stifling of economic growth’, but the Government has little interest in data. For example, only a fifth of respondents to the recent consultation paper supported the proposal to shorten the time limit in relation to planning JRs, but the proposals went ahead anyway.

The Government seems less than enthusiastic about consulting the public these days too. Following the introduction of the Cabinet Office Consultation Principles in 2012, standard consultation periods of 12 weeks have been replaced by 2-6 weeks (witness the 3-week period for the review of the Joint Nature Conservation Committee over the Easter break). Anyone would think they’d already made their minds up.

The Aarhus Convention goes to the heart of environmental democracy. Judicial  Review  cases  are  not  road  traffic  matters    they  concern  complex  legal arguments of unlawful behaviour by public bodies and remain a key mechanism for environmental protection. Restrictions on judicial review are of  constitutional  importance,  and  should  not  be confused  with measures  to  cut  red tape or costs.  If you’re interested in exercising your democratic right to protect the environment, bone up on the Aarhus Convention – before George Osborne turns his attention to it.

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18 Replies to “The UK and Environmental democracy – the Aarhus end of nowhere?”

  1. Isn't it strange, then, that the conservation lobby has done it's best to pretend the forest sales fiasco never really happened ? The public outcry may not have been within the neat confines of the 'establishment' where the different sides fight their battles within the cosy confines of the planning system or the law - but with conservationists moaning (justifiably) that 'noone' is listening to us' surely this was the opportunity to use the leverage for the environment as a whole rather than siding with a Government to which nature conservation owes less than nothing.

    It's the same with 'nature at the weekends': we've got developing models - to which RSPB are a major and imaginative contributor - for bringing natural environments to our towns and cities - and the potential for a new way to 'finishing' our towns that contrasts with the wasteland of the worst greenbelts - but, again, there seems to be a huge problem in recognising how the different elements - new woodlands for recreation, new wetlands for wildlife, parks, sports field etc could add up to a complete network of natural space close to where people live; could also do far more in terms of water management, absorbing peak flows and reducing flooding, cleaning grey water through Bittern friendly reedbeds, producing low carbon fuel from trees and reeds. And surely we should be re-evluating the currently overiding priority given to farming, right up to the urban edge - surely in the 21st C we can spare a little space for our overwhelmingly urban population (which also pays heavily to keep that farming going) ?

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  2. Carol

    Thanks for writing this blog which is interesting and concerning in equal measure, at least to me. I take a great deal of interest in nature conservation legislation, owing to my profession, and whilst the Aarhus Convention was within my 'radar', other Directives (Habitat and Bird) play a more prominent role. My concern is, that with the recent performance by UKIP in the local elections and their predicted/ anticipated strong performance in the 2014 European elections, this will push the Conservative-led coalition further to the right, taking more extreme views on what environmental legislation should be retained, replaced (watered-down) or repealed. The JNCC consultation is a case in point; restricting the period to such a short time-frame is impinging on the democratic right (my opinion). An analogy could be allowing people the freedom to vote but not giving them sufficient time to reach the ballot box. Is this justified in law, domestic, EU or international?

    I also wonder how much of this is related to significant proposed/ mooted development projects (e.g. Thames Estuary Airport) that are currently 'troubled' by EU Environmental/ nature conservation law. I wonder if this potential project is cited internally within the Cabinet as an example of environmental law suppressing economic development?

    Furthermore, I also wonder whether the recent Lydd Airport decision is really a litmus test of:

    (a) how/ whether stakeholders will use relevant EU Directives to object; and
    (b) how will the EU respond?

    In my opinion, the Lydd Airport decision ought to be thrown out on the basis of the Waddensee Judgement and a couple of other EU Case-Law relating to SPAs (e.g. Commission v Germany ("Leybucht Case") [C 57/89, ECR (1989) 2489 preliminary ruling; ECR (1991-I) p. 883 (final ruling)]. I'd and am sure others would welcome a brief opinion on this if you have the time!.

    The relevance of my comment to your article is that there seems to be (is?) a general attack on EU law in relation to the environment without any material justification, of which the Aarhus 'principles' are a component. It's frustrating and worrying and the general population (the wo(man) on the Clapham Omnibus in legal parlance) seem to be completely unaware of it!

    .

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      1. I have no idea if this is a spoof or a genuine idea or a Boris Island predecessor but disregarding the environmental and ecological arguments, this doesn't look like a professional approach. None of the plans seem to reflect anything more than some haphazard lines and blobs on a map. Not something that is likely to be put forward as a serious proposal in the format that is presented. And in my opinion, it is written by someone/ persons that knows not very much about presenting masterplans, proposals and ideas to a serious audience.

        I'd focus on 'Boris Island' which is probably more professional in scope.

        Richard

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        1. I know what you're saying Richard, there isn't much detail on the site is there, I got the feeling of hoax/scam/distraction whilst viewing BUT at the time of the announcement of Boris' Island there was another proposal floating around however the Boris PR machine made sure it was his plans that got the mention in the press....perhaps worth keeping an eye on especially if Boris Island falls off the radar.

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  3. Great post, Carol. I believe that this Government and the previous one have both tended to show a cavalier attitude to important legal rights when it is expedient - whether in the name of economic growth, security or electoral populism. Such rights are all too easily lost and damned difficult to get back.

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  4. Any chance of a democracy in this country? Not with the present government it seems. Why don,t they use the old addage, if you don,t know what you are doing, ask someone. The blackest government as far as our Environment is concerned is either too proud to take notice or too arrogant to ask. Or should that be the other way round? What happened to "big society" is it one way traffic. The public do not expect government to do everything right but something every once in a while would be an improvement. All we hear is negativity from this government. Is there no-one in the present government who understands our Environment or are they not allowed a public opinion? Still, I suppose the present encumbents are not expecting to be in charge of us or the Environment after the next election. Come on Mr. Cameron, you can do better.

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  5. R L,farmers pay a high price to feed people like you who show very little gratitude,some always want more and do not consider themselves lucky to be well fed with relatively cheap food while spending considerably more on unnecessary things like mobile phones,laptops etc,lots of electrical things and even cars.All of which if the crunch came you could manage without but you would not last long without food.

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  6. Or water, Dennis, which I've pointed out before we are all paying farmers to pollute and then paying again to clean up. Whilst I do have the greatest respect for you, I'm afraid you are playing the farmers game (which to be fair has been successful over far longer than it should have been) of switching between emotion and economics at will.

    You've also got that other damaging farmers kneejerk - opposing the use of even a square inch of farmland for anything else (unless its for development at £1m a hectare). In suggesting some land round our cities could be returned to a more natural landscape I'm not arguing for the collapse of English agriculture - in fact, I'm arguing for quite the opposite - that land managers should be paid for ALL the services they deliver, not skewed so heavily towards food production which causes so many of farmings problems. You might also have noticed - I've said it several times - how I've flagged up the peaking & decline in farm incomes - whilst food industry values just keep soaring ever higher. It is pretty grim when supermarket price wars continue to teeter on the brink of killing the British dairy industry - it leads one to question the way we are doing things, and personally I don't think the status quo is doing much for either farmers or the environment.

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  7. R L,just like most people it suits you to accuse farmers as polluters(only partly true)the major polluters are industry,vehicles and population who put all the sewage partly treated no doubt into the sea,how crazy is it to moan about the little bit in proportion of what farmers receive from tax payers which gets what is required for wildlife schemes and cheaper food for all while lots of people spend probably £2,000 a year on holidays which probably equates to half the weekly shopping bill.
    Strangely no one ever moans about the excessive salary's of lots of conservationists employed by so called charities,they are far more than the average working farmer gets from produce and subsidies.For sure the farmer works harder and longer hours and in his own field is just as knowledgeable as these high salary people.
    You would not get the sly carping always brought into blogs and comments about farming if for any reason food could not be imported into this country.

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    1. “just like most people it suits you to accuse farmers as polluters(only partly true)the major polluters are industry,vehicles and population who put all the sewage partly treated no doubt into the sea".

      There cannot be any doubt that farming is a major source of diffuse pollution, it is estimated that 61% of nitrate and up to 40% of the phosphate load in surface waters in England & Wales is attributable to losses from agricultural land / farming practices. This costs us all a substantial sum.
      Pointing out these facts and questioning the value offered by the current payment system to the tax-payer, the farmer and the environment and highlighting the fact that farmers could be paid more for the provision of eco-system services is not unreasonable. This is not about attacking farmers, its about highlighting the flaws in a system which nobody really gains in the long-term.

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  8. Some of the problem, at least, may be the loss of dairy herds from farms. The bi-product of herds used to be spread on fields as fertiliser. This helped to bind the soil together and prevented much of the wind-blow now seen in sandy areas. Hedges and long belt plantations also helped prevent wind-blow. Liquid fertilisers wash through the soil into the aquifer causing pollution of drinking water supplies. "Progress" has a lot to answer for. In our village there were 650 hedges after the 1774 Enclosure Award. Now there are about 20. Do wildlife and visitors want the prairie farms or the hedges, woods, ponds and meadows? Food can still be produced using the "old fashioned" methods but with a more modern approach. The RSPB has shown this will work.

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  9. Just wanted to say thank you to Carol (and anyone involved in similar activities) for carrying out work that must sometimes feel thankless - tracking the details of EU legal policy is probably not what springs to most people's minds when they think of 'conservation work', but it is clearly very important and good to know that there are people fighting to improve things at this level.

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  10. Back to Carol's subject matter, I'm minded to agree with Richard W and ponder the possibility that it is intentional to 'cull' environmental laws which hinder economic development.

    The precautionary principle and participatory rights are not necessarily things that I sense government are keen to promote, let alone actually deliver on. Nor have I experienced statutory agencies or authorities encouraging them as they are contra to central government dictats of 'development at all costs' (simplistic interpretation maybe but see http://www.naturalengland.org.uk/ourwork/planningdevelopment/staffinterchangefeature.aspx
    to see how they now help and advise corporate developers to best understand the legislation (& get round it perhaps, rather like the big accountancy firms who advise on tax avoidance). Then look at all the case law to see who is winning. Too many conflicts of interest and too many neutered NGOs dependant on statutory mitigation or developers (S106) handouts to champion principles anymore.

    Carol is right that we should champion adherance to the Aarhus Convention, it affords individuals rights and there is precious little which offers environmental conservation campaigns that opportunity.

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    1. "The precautionary principle and participatory rights are not necessarily things that I sense government are keen to promote"

      Or even the hopefuls http://www.farminguk.com/news/MEP-slams-Commission-for-dunking-a-witch-_25477.html

      You kip if you want to ...

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  11. "The Government seems less than enthusiastic about consulting ... ... Anyone would think they’d already made their minds up."

    Of course they have. If any consultations - Gubmint or otherwise - are not false ones I'll eat my sou'wester. Just another wonk box to tick, in the march of policy-led evidence.

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  12. Sometimes it is important to give proper public recognition to those who tirelessly champion the cause behind the scenes, against what always seem like overwhelming odds (cliche as that may be). This is a public thanks from those of us who have struggled to make the EU Habs Regs stick time and time and time again, and who have relied on Carol for wise advice. There are few chances to do that publicly and this is one of them. Without her advice and friendship numerous flawed planning applications would have diminished the environment measurably and those of us with less knowledge and skill would have struggled far more than we already have to, with less chance of success.

    As to why this matters. I read recently about Euroscepticism. Well for all those who have doubts may I just ask those who have doubts and care about wildlife to contemplate that without the EU Habs Regs there would have been little to stop many losses. And keeping it preventing losses is important to us all.
    Thanks Carol

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