Guest blog – Emperor Gove’s New Clothes by Carol Day

Carol Day has worked for environmental NGOs, including The Wildlife Trusts and WWF, for over 25 years. She now works part-time as a Consultant Solicitor for Leigh Day and as a Legal Consultant for the RSPB. Carol was part of the Leigh Day team with whom I worked on our successful legal challenge to Natural England over Walshaw Moor. The views expressed here are her own.

 

Environmental Governance post-Brexit and the Emperor’s New Clothes

By Pearson Scott Foresman – Archives of Pearson Scott Foresman, via Wikimedia Commons

Yesterday’s Guest Blog by Richard Wilson (see here) raised important and disturbing concerns about the Government’s plans for environmental governance post-Brexit. We now have until 2nd August to tell Defra what we think of their proposals to replace the mighty European Commission and the European Court (see the Government consultation here) with a new environmental body. Let me start by saying that just because you say you will be setting a “gold standard for environmental protection” with the creation of a “world-leading, independent watchdog to hold Government to account” doesn’t mean that you actually are. Because when you look at the Government’s proposals, it becomes apparent they have more holes than a rusty colander.

Before we examine what it is being proposed, let’s briefly remind ourselves what we’re losing. The European Commission fulfils a powerful role in developing and progressing new legislation and policy. It monitors the implementation of EU law and can (either of its own volition or following a complaint from a member of the public or an NGO) refer cases to the European Court. The Court operates as a supreme authority, to which Member States can refer cases for interpretative rulings and whose judgments bind domestic courts. The European Court typically exerts a more intense scrutiny of the issues (known as proportionality) than UK courts and has the power to impose powerful sanctions in the form of daily fines. In my experience, it is infraction proceedings by the EU that set the wheels moving within Government Departments.

By Vilhelm Pedersen (1820 – 1859) [Public domain], via Wikimedia Commons

So, turning to Defra’s proposals. The Government has pledged that we will be “the first generation to leave the environment in a better state than that in which we inherited it”. In order to achieve that, it has published a 25 Year Environment Plan (for England), which will be complemented by a new statutory policy statement on environmental principles and a new environmental watchdog. The Statement on Principles and the new Watchdog will be created through an Environmental Principles and Governance Bill to be introduced in Parliament in the Autumn.

A number of pivotal environmental principles (such as the precautionary principle and sustainable development) currently form part of the principal Treaty on which the EU is based (the TFEU) and are framed in the EU Treaties. They therefore underpin the development of policy and legislation by the EU institutions and feed through into EU legislation. For example, the precautionary principle is included in the Habitats Directive, the REACH Regulation and the Invasive Alien Species Regulation. Similarly, the polluter pays principle is referred to in the Water Framework Directive. The Government intends to replace its Treaty obligations with a policy statement (with a status similar to planning guidance), which itself will be subject to the proportionality principle in light of the need to “balance environmental priorities alongside other national priorities” (for which read compromise). This doesn’t sound like a very gold standard start to me.

The consultation paper claims that the overarching goal in establishing a new environmental body is to bolster the UK’s environmental governance framework as it leaves the EU. Its three main objectives will be: (1) to provide independent scrutiny and advice on the implementation of environmental law and policy; (2) to receive and consider environmental complaints and concerns from the public; and (3) to enforce Government delivery of environmental law. The Consultation invites views on whether the new body should regulate all public bodies or confine attention to central Government (no prizes for guessing the latter is the preferred option). In the main, the new body will achieve conformity by issuing non-legally binding declarations of non-compliance. In cases of strategic importance or national significance, the body will be able to issue advisory notices requesting compliance, with recourse to binding notices and have the power to agree environmental undertakings (akin to current domestic civil sanctions provisions such as compliance notices, restoration notices and stop notices). And what happens if central Government doesn’t comply with the notices or undertakings? Well, that’s it. No court, no hearing, no fines – nothing. This is a watchdog with a narrow remit and no teeth.

At this point, the consultation paper highlights the UK’s “vibrant democracy and robust legal systems” – by which I assume they mean people can fall-back on Judicial Review (JR). Now, don’t get me wrong, JR can be effective –witness Walshaw Moor (see here) – but it is a wholly different beast to the EU complaints process and recourse to the European Court. JR is risky, expensive and a blunt instrument, in that it is largely concerned with procedural unlawfulness. Prospective claimants are often forced to scrabble around for a defective consultation process or a misinterpretation of policy as they cannot get at the issue they really want to address – the merits of the decision. Contrast this to the EU complaints process – which is admittedly slow – but is free from costs risk for the complainant and can yield far-reaching results. I drafted two complaints to the Commission in my time with WWF – one (ironically) on the prohibitively high cost of taking legal action in the UK, which (thanks to combined efforts) ultimately resulted in a new Aarhus costs regime for environmental cases and the other on the UK’s failure to designate Special Areas of Conservation for the harbour porpoise (a suite of sites is underway). It is abundantly clear to me that the UK would not have moved on either of these issues had the Commission not embarked on infraction proceedings and referred the cases to the European Court. Under the proposed regime, a public complaint will usually result in a non-legally binding declaration of non-compliance and, at best, a binding notice but no remedy. This doesn’t sound like a gold standard deterrent either.

And just as our complaints won’t end up in a court, the domestic courts won’t have anywhere to refer their legal questions of interpretation to either. At present, a national court or tribunal can refer a question of EU law to the European Court for a preliminary ruling so as to enable the national court to decide the case before it. This process has resulted in some very important judgments in the UK including cases brought by Fish Legal (which confirmed that water and sewage utility companies are “public authorities” for the purposes of the environmental information regulations) and the case of Edwards, which also concerned the cost of taking legal action in environmental cases in the UK.

The failure to address (or even mention) the loss of these pivotal functions of the European Court and the legislative and policy powerhouse of the Commission is nothing less than a cavernous justice deficit. But perhaps the most astonishing thing is that the Government appears to think that if they big the proposals up enough we may not notice.

In her speech at the London Wetlands Centre in January 2018, the Prime Minister confirmed that the Government would use Brexit as an opportunity to strengthen and enhance our environmental protections – not weaken them. This consultation paper similarly identifies the opportunity to set a gold standard for environmental protection. So, let’s be clear – the expectation that a new Watchdog can, and should, be expected to do a better job of protecting the environment than the Commission and the European Court is not ours, it is the Government’s. To meet that expectation, we need much more than is currently on offer. We need environmental principles with a legislative basis, robust environmental duties on public bodies, a new Watchdog with the remit, powers and resources to refer public bodies to court where necessary and a reform of the judicial process.  Whether such cases end up in the High Court or a bespoke environmental court, there is work to be done around timescales and costs for bringing legal action, the intensity of review applied by the court and the remedies available.

But most importantly, we need to send a collective message to Defra before August that these proposals for environmental governance are nowhere near equivalent, let alone gold standard.

 

Leigh Day and Matrix Chambers are running an event on post-Brexit Governance on 24th May 2018 – further details here and below.

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21 Comments

  1. Miles says:

    excellent blog from Carol, as always.

    The other thing that keeps occurring to me when I think about the changes coming, is this. What is going to happen to all the additional protections provided to European Sites (and European Protected Species anywhere) once we leave the EU and no longer have recourse to the EC or EUCJ.

    What's to stop housebuilders building right up to the boundary of every SPA and SAC heathland (or indeed building houses on them). What's to stop Associated British Ports building Dibden Bay, or the Swansea Tidal Lagoon, or the M4 over the Gwent Levels.

    There's a long list of development proposals which have been stopped by the Habitats and Birds Directives (does anyone have a definitive list?). I just don't see how these are going to be stopped, without the EC/EUCJ "backstop" operating.

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    • Carol Day says:

      That's kind Miles - thanks!

      And I share your concerns. I think it's safe to assume the Government has a shortlist of Regulations in need of urgent "updating" on leaving the EU - and that the Habitats Regulations will be near the top (even though the outcome of the domestic Habitats Directive review a few years ago, and the more recent EU Nature Directives REFIT review, showed the net benefit the Directives bring us). I think we can also assume the objective of any review would not be to strengthen the protections afforded to Natura 2000 sites (although on current practice that's how they may be framed ...). If these proposals go ahead, our only enforcement mechanisms will then be a complaint to the new watchdog (with its limited powers) or trusty old Judicial Review (with all the problems highlighted in the blog). But I also think the Government would be foolish to underestimate how strongly people feel about these areas (be they EU sites, SSSIs or wildlife sites actually). They should expect a fight on the beaches!

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      • Miles says:

        thanks Carol. The chances of JR being a useful mechanism to protect the hard-won gains of Natura 2000 seem..... somewhat optimistic. And with the Watchdog as currently proposed, it will have no power whatsoever to overturn eg decisions made at Public Inquiries, PINS or directly by the Secretary of State.

        But yesterday the Lords came out very strongly in favour of a watchdog and associated legal force (environmental court?) to match the EU - and it will be interesting to see whether Gove makes any commitment to revisit the current proposals before the EU withdrawal Bill returns to the Commons. As you say, there is still everything to play for. Would it be worth getting some strong commitments out of Labour in advance of the Commons debate on the environmental issues?

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        • Messi says:

          I would be worth trying to get something out of Labour - but your chances of success are slim!

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        • Carol Day says:

          Miles and Messi,

          These are useful ideas. Many colleagues will know that I mercilessly bang on about an environmental court. It's not everyone's ideas of the way forward (many think the environment should be embedded in our legal system, not treated as a discrete subject). While I agree, it would give us an opportunity to develop bespoke rules for the environment that the Government would not entertain more widely. I agree re: Labour, which is depressing as a Labour Party member...

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  2. Richard Ebbs says:

    The views expressed here are her own. Maybe, but it is reassuring to know that Carol and Leigh Day are fighting the Environmental corner for us. An excellent blog.

    A scary, but possible, scenario suggested by Miles. Also worth reading Martin Harper's blog today and the RSPB's comments on "Further reflections on Defra's proposed Environment Watchdog"
    Read more at https://ww2.rspb.org.uk/community/ourwork/b/martinharper/default.aspx#Ifz12mtA39qHBgdt.99

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  3. Callum Rankine says:

    An excellent blog.
    Been out this morning surveying for Great Crested Newts. Given that getting rid of environmental legislation has been a long standing ambition of the Tory party I wonder how long it will be before the EPS list is abolished and protection in general rolled back?

    There are many consultant ecologists out there wondering what work there will be in the post-Brexit future. Time to re-train methinks.

    Keep fighting the fight Posh!

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  4. Carol Day says:

    Thank you Richard. We were recently referred to as a "campaigning law firm" by the Government. I'm not sure how it was meant to be taken, so I took it as a compliment! I'll take a look at Martin's recent blog - it's heartening to remember that the RSPB was at the forefront of the reviews of the Natura Directives at both England and EU levels.

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  5. Joan Thompson says:

    Never got past point of post Brexit before felt compelled to comment. Brexit is most definitely not a Done Deal. There is a March in London on 23 June to try get People's Vote on Brexit Deal with option to Remain. The referendum result was so slim & there are now far more young voters who were denied say in their future & polls show they predominantly want to Stay in EU

    Certainly poll after poll show public opinion changing on Brexit with higher number wanting final say on deal.

    I million students want final say as do Royal College of Nurses It is also policy of Libdems & Labour membership want final say according to polls though Corbyn is against.

    I still believe EU Directives give us better environmental protection from vagaries of a particular Govt sole bent on destroying environment.

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    • Carol Day says:

      I hope you're right Joan and will look up details of the March. I get frustrated when people say the outcome of the referendum was clear - when, at 52:48%, it was clearly anything but!

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  6. Mike says:

    I don't see much nature protection from being in the EU where I live. Only acre after acre of new homes as our population has gone up and up. Areas that were once lovely green corridors or prime agricultural land frequented by owls and countless other birds are now covered in 1000s of little lego houses and clogged by roads and pollution. The nature of our lovely country has gone downhill over the many years of EU membership and blighted too by freedom of movement.

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    • Messi says:

      Mike, the Thames estuary airport was abandoned largely because of tough EU nature legislation - the cost of compulsory compensation (required by Article 6(4) of the Habitats Directive) would have been prohibitive. The Dibden Bay project was thrown out by inspectors because it failed to satisfy EU law regarding alternatives (one could construct a container port elsewhere, so no justification for wrecking Southampton Water). When the MoD wanted to massively increase training on Salisbury Plain they couldn't because the area is protected under European nature legislation. You mention house building: the big push for new homes comes from our government which refuses to fix the problem of second and third home owners and couples living in five-bedroom homes (how many ministers have second homes as 'investments' and holiday bolt holes that are empty much of the year?). I personally live in a van because I can't afford a home but I don't 'blame' the EU, I 'blame' the electorate for failing to hold successive governments to account. Lots of other people are stuffed into tower blocks with awful safety standards - most house-building isn't affordable and isn't occupied by those on lower incomes. As an ecologist working for a local planning authority, I work on bats, dormice, great-crested newts etc every day - these are all European Protected Species, i.e. they derive their protection from EU law. In my experience successive governments only concede that such species need protecting because EU law says they do. If it was up to our own domestic government, nature legislation would be significantly weakened. And that's precisely what we're seeing - Gove's new 'watchdog' will have far less accountability and powers than is offered by the EU nature legislation and courts.

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      • Jonathan Wallace says:

        Yes, I agree. The signs are that wildlife will be more weakly protected after we have left the EU.

        The EU certainly does not have an unblemished record on the environment, however, and the CAP in particular has been very harmful to wildlife. In principle Brexit offers an opportunity to do something about that and re-set the system for agricultural subsidies so that they promote farming practices that are helpful to wildlife. I do not feel optimistic that this will happen, however, and fear that post-brexit we may even see further intensification of farming. As an example, I suspect that in any trade deal we negotiate with the US we might find ourselves obliged to accept 'round-up ready' crops that will allow further drenching of farmland in herbicide and the elimination of 'weeds' (aka wild flowers) from much of the countryside. Certainly I do not see Liam Fox as having any inclination to resist demands from the US (or others) that we relax any environmental restrictions that are perceived as limiting commercial opportunities for major corporations.

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        • Messi says:

          Quite right regarding the CAP, but did that not have its roots in UK post-war farm policy and our desire to re-direct the efforts of wartime industries (to provide new markets for fertiliser, for example), and it's often been UK farm ministers and UK Eurocrats that have pushed the farm intensification agenda in Brussels, pushed by the NFU back home. I really hope we do see a decent new countryside policy emerging post Brexit, but I hope this is not at the expense of protected wildlife sites (because SPAs and SACs are the crown jewels, and no amount of 'wildlife-friendly farming' would replace increasingly degraded protected wildlife sites).

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          • Messi says:

            For example, we could see, on the one hand, really nice hedgerows secured under a better UK farm support regime, and, on the other, an airport at Cliff, no end to intensive driven grouse moor management across the uplands, failure to replace intertidal habitats lost to sea-level rise, reduced protection for all UK bat species, reptiles, amphibians.....

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  7. Sandra Padfield says:

    Excellent comment, Messi and true to the facts. And, thanks to Carol for the intelligent and informative analysis of the problems we face, and thanks, of course, to Mark and many other bloggers for keeping us up-to-date with the political manoeuvring.

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  8. Roderick Leslie says:

    A key reason European protections worked was that infringements impacted on the UKs wider EU position - no Government wanted to lose brownie points around the heads of Government table, so our Government respected the regualtions not because it believed in them but because it moght impact something they did care about. It is very hard to see how this can be replaced when past experience has shown how readily Government overode domestic protections if it felt like it

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    • Matt Shardlow says:

      In part, but also in a big part because the EU could apply crippling fines.

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      • Carol Day says:

        Apologies for my delayed response (have been away for the weekend!).

        I think Matt has a good point re: fines. We've seen headline hitting fines of billions of euros in relation to competition law cases for the likes of Facebook and Apple, but environmental cases also attract dissuasive fines (if not in that order!). Breaches of the Urban Waste Water Directive by Greece and Italy both attracted fines in the order of a lump sum of 16 million euros and a daily penalty of between 30,000 - 60,000 euros - which gets results. There's the opportunity to be more creative with penalties as well (e.g. restoration orders).

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