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
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.
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.