Brexit: environment and climate change Contents

Chapter 4: Enforcement of environmental law

Enforcement within the EU

The role of the Commission

66.Regardless of what form the Great Repeal Bill takes, it cannot in itself transfer the enforcement mechanisms and institutions that currently underpin EU environmental law and standards. In particular, as Prof Lee noted, a Bill, the primary focus of which is repeal of the European Communities Act 1972, will not be the appropriate vehicle for replacing the central role in enforcing environmental regulation currently played by the European Commission:

“It sounds so far-fetched to say that we might replace the Commission, but we have taken the Commission’s role in supervising compliance completely for granted for 40 years, and that will go. We should think about whether it is feasible to replace that with a parliamentary body, a government body or some other sort of public body that will supervise government and agency compliance with the law. It sounds ambitious in the current climate, but we have had this for 40 years and we are about to lose it. It is important.”90

67.The Commission is a key player in the current enforcement of environmental legislation. Prof Lee cited our “obligations to report on how we intend to comply, then to report on how we did comply, and to explain how we will come into compliance if we fail to do so. We report to a well-resourced, well-informed, named body—the Commission.”91 The Wildlife Trusts noted that the Commission “provides a great deal of support on environmental legislation, including sharing information, monitoring progress, facilitating reporting on progress across Member States, providing guidance and interpretation of legislation”.92 The RSPB summarised the importance of these structures:

“Periodic monitoring and reporting to the European Commission on the implementation of laws such as the Birds and Habitats Directives, combined with robust EU scrutiny and enforcement mechanisms, enables progress to be objectively assessed and Member States held to account if necessary.”93

The role of the Court of Justice of the European Union

68.The Commission’s enforcement role is underpinned by a right to bring infraction proceedings against Member States to the CJEU, in the event that they fail to comply with their obligations under EU law. According to The Wildlife Trusts, the value of the CJEU is that it “provides access to justice for all, via a free process that allows breaches of EU law to be raised, potentially resulting in infraction proceedings, judgments and subsequent case law.”94 They therefore cautioned: “Even a direct transfer of EU environmental legislation into UK law will result in an erosion of the protections that this legislation provides. Of concern is the loss of accountability from both the European Commission … and the [CJEU]”.95 Mr Hutchings agreed: “A whole range of accountability mechanisms are potentially at risk as we leave the EU.”96

69.In evidence to the Environmental Audit Committee in February 2016, the Commission stated that 30 environment cases brought by the Commission against the UK had resulted in judgments against the UK.97 Such enforcement proceedings have been a driver for environmental improvement, as Mr Andrews told us: “The EU conducted a review of air quality law in 2013 and the Government were very open about their intention to use that process to avoid the risk of infraction, which is code for avoiding the risk of being sued by the Commission.”98 Ms Mukherjee made a similar point: “Governments pay a lot of attention to the risk of being infracted because it is very expensive and it is not brilliant for your reputation”.99

70.Mr Jacobs agreed that, during his time as a Government adviser, “the threat of infraction drove environmental policy. Our recycling targets were driven by the threat of infraction, and the sums of money that we were going to be fined were absolutely at the heart of that process.”100 Similarly, according to Mr Andrews, “the main driver behind [the Government’s] new air quality plan was not the Supreme Court order from the UK in 2015, but the threat of being infracted by the Commission. They aimed to comply based on when they thought the Commission might move to issuing fines.”101 This was underlined in the High Court’s ruling on the case brought against Defra by ClientEarth, which stated: “A principal driving factor in selecting 2020 [as the date for introducing measures to reduce nitrogen dioxide emissions] was not the obligation to remedy the problem as soon as possible but to remedy it in time to avoid EU infraction proceedings.”102

Conclusion

71.The European Commission and the Court of Justice of the European Union have had a strong impact in ensuring the UK’s compliance with EU legislation that affects environmental protection. The evidence we have heard suggests the effectiveness of the EU regulatory regime is thanks in part to the deterrent effect of the power of EU institutions to hold Member States to account and to levy fines upon them for non-compliance.

UK judicial oversight

72.Following Brexit, without the jurisdiction of the CJEU, it would be for domestic courts to enforce public authorities’ and Ministers’ compliance with environmental legislation, typically by means of judicial review.103 Witnesses expressed differing views on the effectiveness of domestic judicial review. While the Minister, Dr Norman, called it “an extraordinarily effective means of holding the Government to account”,104 Prof Macrory was more cautious: “Despite some efforts to limit exposure of costs, it is still a very expensive and time-consuming process.”105 Mr Andrews had similar concerns: “It would be very easy to make judicial review difficult or impossible for environmental NGOs such as ClientEarth as it was five years ago when the cost of bringing legal action was so prohibitively expensive we could not even consider it.”106

73.The powers of domestic courts are also significantly less than those of the EU institutions. This is in large part because, in the words of Mr Jacobs: “The Commission can fine. The Supreme Court does not fine.”107

74.As Prof Macrory noted, questions of enforcement and judicial oversight are not confined to environmental law: “This whole question of enforcement and so on is going to apply to all areas of law if we leave the EU.” He believed, though, that the environment was particularly vulnerable, because there was no clear economic owner to protect it.108 He believed that there might be a case for “special treatment” of the environment, and The Wildlife Trusts also suggested that “serious consideration [should be] given to the creation of a specialist forum for environmental cases”.109

75.Ms Mukherjee raised the more fundamental question of what party, in future cases before the domestic courts, would be liable for any infractions:

“At the moment it is the UK Government and that drives an awful lot of thinking by the Government about how not to be infracted. If it is not the Government, but a sector, or the Environment Agency in any of the four UK Administrations that raises the question, would there be that impetus and that brainpower behind assuring an avoidance of infraction?”110

The need for additional enforcement

76.Many witnesses told us that the UK would need additional enforcement mechanisms to fill the gap left by the Commission, and to ensure that the Government continued to meet its environmental obligations post-Brexit.

77.In the absence of such additional mechanisms, there could be a void. Ms Davis acknowledged that “trying to find a replacement [for EU level accountability] that is at least as strong at UK level will be a challenge”,111 while the Game and Wildlife Conservation Trust said: “There is little use of having good legislation if there is limited means to enforce it.”112 Mr Andrews agreed: “Simply by not replacing the enforcement mechanisms that we lose when we leave the EU we could render the air quality laws pretty much ineffective.”113

78.Witnesses argued strongly that the EU enforcement and oversight mechanisms should be replicated, as far as possible, in future domestic arrangements. Thus Prof Howell wanted “a clear framework setting out how the role of the European Commission and the [CJEU] would be replicated in the UK”.114 The Wildlife Trusts also cited the challenge of “how to ensure accountability mechanisms are replaced”, and told us: “We believe [the Commission’s] expertise will need to be replicated at a domestic level and consideration should be given to the funding and independence of our regulatory bodies to ensure that they are fit for purpose.”115 The Game and Wildlife Conservation Trust stated: “Mechanisms of enforcement and regulation must be secured prior to enactment of the Great Repeal Bill, in the place of [the European] Commission.”116

79.Various models for filling different aspects of this gap were suggested to us, ranging from a new parliamentary or public body to an environmental ombudsman or a body similar to the Climate Change Committee for the environment.117 We also heard about possible models in the US Environmental Protection Agency,118 the Hungarian Parliamentary Commissioner for Future Generations,119 and the courts enforcing constitutional obligations in India and Pakistan.120 Prof Lee stated that any reporting model should provide for both political and legal accountability,121 while Mr Andrews emphasised that the enforcement body should have “powers of inspection and the power to issue fines and penalties”.122

80.The Minister, Dr Coffey, reassured us that “people should not have cause for concern all of a sudden that we see Brexit as an opportunity to backslide on the environment; far from it. We want to have a better environment than we inherited.”123 She affirmed that “it is the role of Parliament to hold the Government to account”, and said that “Part of the role of the Environmental Audit Select Committee in the Commons is exactly to do this kind of work across government—focusing not just on Defra but on others—and hold us to account.” She also told us: “The Government are accountable ultimately through the ballot box, but … the law is there and, if people believe that we are not complying with the law, they can take the Government to court about it”.124 In this she echoed the views of the Secretary of State, Rt Hon Andrea Leadsom MP, in evidence to the Environmental Audit Committee:

“The UK courts will be perfectly well able to deal with any issues of enforcement, as indeed they do now on issues with water or wildlife crime and so on. The UK courts are perfectly well able to deal with matters of enforcement. We won’t be needing to replace European courts.”125

81.Dr Norman agreed with his ministerial colleagues:

“What I think is a good guide is the flexibility with which British Governments over the years have created standards for themselves and been able to hold themselves to account by parliamentary means in a way that has given comfort to the wider public that these standards are being properly enforced and understood.”126

82.The Government’s confidence in its ability to ‘hold itself to account’ contrasts with the concern expressed by the vast majority of our witnesses, that without supra-national oversight, by means of the EU institutions, environmental protection in the UK could be undermined. In the words of Mr Jacobs: “It is less what standards you have; it is what compliance forces government into acting sufficiently to meet those standards.”127

83.The importance of the role of the EU institutions in ensuring effective enforcement of environmental protection and standards, underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, cannot be over-stated. The Government’s assurances that future Governments will, in effect, be able to regulate themselves, along with Ministers’ apparent confusion between political accountability to Parliament and judicial oversight, are worryingly complacent.

84.The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission in ensuring the compliance of the Government and public authorities with environmental obligations. Such enforcement will need to be underpinned by effective judicial oversight, and we note the concerns of witnesses that existing domestic judicial review procedures may be inadequate and costly.

85.It will be important for any effective domestic enforcement mechanism to have both regular oversight of the Government’s progress towards its environmental objectives, and the ability, through the courts, to sanction non-compliance as necessary.


92 Written evidence from The Wildlife Trusts (ECB0007); Q 27 (Alan Andrews)

93 Written evidence from the RSPB (ECB0006), citing the EU review of the Habitats and Birds Directives as part of the REFIT programme: http://www.wcl.org.uk/habsregs.asp [accessed 30 January 2017]

94 Written evidence from The Wildlife Trusts (ECB0007)

95 Written evidence from The Wildlife Trusts (ECB0007)

97 Further written evidence from the European Commission to the Environmental Audit Committee (AEP0065) p 3

102 Clientearth v Secretary of State for the Environment, Food and Rural Affairs, (2016) EWHC 2740 (Admin), para 66. ClientEarth took Defra to court to challenge its Air Quality Plan, as required by the Air Quality Directive (2008/50/EC).

103 Q 9 (Prof Maria Lee); Q 24 (Alan Andrews)

109 Written evidence from The Wildlife Trusts (ECB0007)

112 Written evidence from the Game and Wildlife Conservation Trust (ECB0010)

114 Written evidence from Prof Dickon Howell (ECB0003)

115 Written evidence from The Wildlife Trusts (ECB0007)

116 Written evidence from the Game and Wildlife Conservation Trust (ECB0010)

117 Written evidence from The Wildlife Trusts (ECB0007); Q 9 (Prof Maria Lee); Q 10 (Prof Richard Macrory)

118 27 (Alan Andrews)

119 Q 10 (Prof Richard Macrory)

120 Q 9 (Prof Maria Lee)

125 Oral evidence taken before the Environmental Audit Committee, 25 October 2016 (Session 2016–17), Q 329 (Andrea Leadsom MP)




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