Documents considered by the Committee on 21 February 2018 Contents

13Access to EU environmental justice at EU and Member State level

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; further information requested; drawn to the attention of the Environmental Audit and the Environment, Food, and Rural Affairs Committees

Document details

(a) Proposal for a Council Decision on the position to be adopted, on behalf of the European Union, at the sixth session of the Meeting of the Parties to the Aarhus Convention regarding compliance case ACCC/C/2008/32; (b) Commission Notice on Access to Justice in Environmental Matters.

Legal base

(a)Articles 192(1) and 218(9) TFEU;—; QMV (b)—


Environment, Food and Rural Affairs

Document Numbers

(a) (38876), 10791/17, COM (17) 366; (b) (38700), 8752/17 + ADD 1, COM (17) 2616

Summary and Committee’s conclusions

13.1The Aarhus Convention is a multilateral agreement aiming to guarantee the public rights on access to information, access to public participation and access to justice in environmental matters. It has been ratified by the EU but also by Member States, including the UK.

13.2Document (a) is a proposed Council Decision on the position to be adopted in the sixth session of the meeting of the parties to the Aarhus Convention regarding a compliance case brought against the EU. It therefore concerns access to environmental justice at EU level. As we reported in November, the Decision was adopted in July 2017.

13.3Document (b) is a Commission Notice on the case law of the Court of Justice on the obligations of Member States to ensure access to environmental justice at national level, in fulfilment of their obligations under the Convention as part of the EU.

13.4When we considered these documents in November, we asked the Government questions on document (a) concerning the UK’s decision to support the EU against the Compliance Committee’s findings. We wondered whether this was because of the UK’s own difficulties in complying with the Convention requirement to provide access to justice which is not “prohibitively expensive” (Article 9(2) paragraph 4). On document (b) we asked about Brexit implications. In particular, whether the UK would need to take additional steps to ensure compliance with the Convention after Brexit when it remains a party in its own right. We wondered whether the Government would need to compensate for the absence of EU enforcement mechanisms, including any plans for a national environmental enforcement body.

13.5The Minister (Dr Thérèse Coffey) has now sent two letters in response. It informs us, amongst other things, that discussions on EU compliance with the Convention have now been deferred until 2021, that the Government has no current plans to use delegated powers under the European Union (Withdrawal) Bill once enacted to change environmental “EU retained law” and that it is consulting on a new, independent statutory body to challenge Government and possibly other public bodies on environmental legislation and to enforce standards.

13.6We thank the Minister for her helpful letters and their targeted focus on the specific questions we asked in our Report on these documents from 22 November 2017.188

13.7The proposed Council Decision (document(a)) was adopted back in July 2017 and so is no longer subject to our scrutiny reserve. We understand from Minister’s letter of 12 January that the decision in the forum of the Meeting of the Aarhus Parties on the Compliance Case against the EU has now been deferred until the Meeting in 2021. This would be after Brexit and presumably after an implementation period/transition, assuming a provisional end-date of 31 December 2020.189 Taking all these considerations into account and the fact that the document (b) is merely non-legislative guidance, we now clear these documents from scrutiny.

13.8However, we note that the Minister’s letters do not mention a couple of recent but highly relevant developments:

a)on 15 December 2017, the Aarhus Compliance Committee decided that a Friends of the Earth complaint190—that there was no public consultation on the European Union (Withdrawal) Bill was admissible. The complainant argues that any failure to consult would amount to a breach of Articles 3 and 8 of the Convention.191 Further, that the White Paper on the Great Repeal Bill was not a public consultation and that the effect of repealing the European Communities Act 1972 and the withdrawal from the EU could have a significant effect on the environment. We note from the public documents available that the Government refutes that there has been a lack of consultation and the White Paper invited feedback with an email address being provided for comments by return. It also relies on other arguments in a letter of 7 December 2017192 which we do not attempt to summarise in this chapter; and

b)in 2017 changes were made in UK law which removed the fixed cap on the costs of hearings in environmental legal challenges. These were referred to in the Minister’s EM on document (b): “The Aarhus Convention requires that relevant challenges under the Convention should not be ‘prohibitively expensive’. This obligation is secured in England and Wales by the environmental costs protection regime (ECPR) established under the Civil Procedure Rules (CPR). The ECPR was amended in February 2017 to take account of developments in UK and EU law”. However, those amendments to the ECPR have been subsequently challenged in the High Court in September 2017 in the case of RSPB and others v Secretary of State for Justice.193 The outcome of that partially successful challenge was that subsequently the court ordered some changes to be made to the 2017 amendments. However, there remains concerns amongst environmental interest groups194 though that despite those further changes, the overall effect of the reforms will have a freezing effect on meritorious environmental challenges.

13.9We ask the Minister to provide us with the Government’s views on these developments. In particular, whether they indicate that the UK is committed fully to complying with the Aarhus Convention both when still an EU Member State and in the future when only a Contracting Party in its own right.

13.10We draw these documents and this chapter to the attention of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee.

Full details of the documents

(a) Proposal for a Council Decision on the position to be adopted, on behalf of the European Union, at the sixth session of the Meeting of the Parties to the Aarhus Convention regarding compliance case ACCC/C/2008/32: (38876), 10791/17, COM (17) 366; (b) Commission Notice on Access to Justice in Environmental Matters: (38700), 8752/17+ ADD 1, COM(17) 2616.

The Minister’s letter of 12 January on document (a)

13.11The Parliamentary Under Secretary of State for the Environment (Dr Thérèse Coffey) says:

“With regards to your first question, the UK rationale to support the Commission’s assessment to reject the findings of compliance case ACCC/C/2008/32 is correctly noted in your draft report in paragraphs 13.20–13.21. There are no additional reasons.

On your second question regarding the legal standing of findings agreed at an Aarhus Convention MoP, we agree with the Commission assessment that findings that are adopted and become MoP decisions “would gain the status of official interpretation of the Aarhus Convention and [are] therefore binding on the Contracting Parties and the Convention Bodies”. We also consider that MoP decisions are legally binding in international law. The UK will continue to fulfil its international obligations under the Convention and this will not be affected by our departure from the EU.

“I also wanted to update on you the status of this compliance case. As you know the UK position was to ‘take note’ and consider’ the findings and recommendation of the Compliance Committee’s report.

“During the discussion at the Meeting of the Parties, it became evident that there was no unanimity amongst the Parties to adopt a decision that would ‘take note’ of and ‘consider’ the findings and recommendation.

“As this is a Convention that has always made its decision on consensus, there were three options available to the EU, as the Party concerned, led by the Commission. They were to: (i) adopt the draft report including the finding and recommendations; (ii) request a vote on the draft decision to reject it—the first in the history of the Convention; or to postpone consideration of the draft decision to the next Meeting of the Parties in 2021.

“The UK considered this carefully and agreed with other member states and the Commission for the EU to request for the draft decision to be referred to at the next Meeting of the parties in 2021. On this basis, and in agreement with the Convention’s secretariat, the draft decision was unanimously deferred. Looking ahead we will continue to work with the Commission and other Member States in maintaining our original position”.

The Minister’s letter of 8 January on document (b)

13.12The Minister says in response to us in this letter:

“I write with reference to your Committee’s Draft Report of 22 November 2017 in particular paragraphs 13.7 to 13.11. You asked three questions: the first, about whether the UK would have to take to take any additional steps to ensure that we continue to comply with the Aarhus Convention once we leave the EU; the second, on any plan to make changes using the delegated legislation powers on “retained” EU law which implements Aarhus Convention obligations; and finally information on post exit planning for the enforcement of EU-derived environmental law and standards. I will address each in turn.

“The UK ratified the Aarhus Convention in 2005. We independently meet our Convention obligations. We will not therefore have to take any additional steps to ensure that we continue to comply with the Aarhus Convention as a Contracting Party.

“In relation to your second question, we do not plan to make changes using the delegated legislation powers provided by the European Union (Withdrawal) Bill) to any “retained” EU law that implements Aarhus Convention obligations for both the EU and Member States.

“Finally, I can share that on 12 November 2017 the Secretary of State for the Department for Environment, Food and Rural Affairs announced his plans to consult in early 2018 on a new, independent, statutory body to advise and challenge government and potentially other public bodies on environmental legislation, stepping in when needed to hold these bodies to account and enforce standards. You can read more at this link:”

Previous Committee Reports

(a) Second Report, HC 301–ii (2017–19), chapter 14 (22 November 2017); (b) Second Report, HC 301–ii (2017–19), chapter 13 (22 November 2017).

188 Second Report, HC 301–ii (2017–19), chapter 14 (22 November 2017); (b) Second Report, HC 301–ii (2017–19), chapter 13 (22 November 2017).

189 Supplementary Council directives for the negotiation of an agreement with the UK setting out the arrangements for its withdrawal from the European Union, adopted 29 January 2018

190 ACCC/C/2017/150 United Kingdom

191 In particular, Article 8 provides “Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment”. It adds “To this end, the following steps should be taken: (a) Time-frames sufficient for effective participation should be fixed; (b) Draft rules should be published or otherwise made publicly available; and (c) The public should be given the opportunity to comment, directly or through representative consultative bodies. The result of the public participation shall be taken into account as far as possible”

192 UK comments on admissibility, 17 December 2017

193 The Royal Society for the Protection of Birds Friends of the Earth Ltd & Anor v Secretary of State for Justice the Lord Chancellor [2017] EWHC 2309 (Admin), 15 September 2017.

194 These issues were discussed during an oral evidence session before the Environmental Audit Committee: Ministry of Justice Environmental Sustainability Overview, HC 545, Q47– 49, 14 November 2017.

23 February 2018