Plugging the post-Brexit gaps in environmental protection

When Brexit day dawns there may be a gap between how environmental protection is regulated and how it is actually achieved.

At the moment the EC Commission can bring enforcement proceedings in the European Court of Justice against a government that it feels is not complying with the law. Post-Brexit that ability to hold government to account will fall away.

In a recent article, Environmental Accountability after Brexit, Maria Lee, a professor at University College London, says:

‘We need a new independent, expert and adequately resourced body to replace the EU’s role in scrutinising and enforcing government performance in environmental matters. It needs to be able to report publicly, and to parliaments and assemblies, on government’s statutory obligations to plan and report on environmental compliance; to compel ministerial responses; to undertake investigations in response to complaints or of its own motion; to demand remedial action; and to bring judicial review actions against government where appropriate.’

This has been recognised by the government. In evidence to Parliament’s environmental audit committee, Michael Gove, the secretary of state for Defra said:

‘The case had been well made that unless you have some means of holding governments and other public bodies to account there is always the danger that environmental damage can be generated or inflicted without an appropriate means of ensuring that, in the broadest sense, justice can be done. When those who are careless about environmental protection or enhancement generate that damage, unless there is some check on the way in which government or public bodies might operate, we do not get the environmental protection we should.’

He added that the government would consult on what type of body should replace the role that the Commission and the Court have played. He was asked about whether there should be one such body for the UK or one for each of the devolved administrations in England, Northern Ireland, Scotland and Wales but thought it a little early to say.

Lawyers are likely to focus on the remedy the body is suggested to have – judicial review. There are difficulties with judicial review in that the court has to give leave, there are fixed timescales in which to bring an action and it is quite costly.

An alternative for the new environmental body might be found in Article 258 of the European Treaty which says:

‘If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.’

A version of this to fit in with domestic law would be far better for the new environmental body than judicial review. Firstly, the body sets out its view in a reasoned opinion. The government has time to respond but that time should be within a set limit. If the government does not accept the body’s opinion and the body feels that the law is not being complied with it can bring its action.

Secondly, the body would not need the court’s permission to bring an action. It would simply start one.

Thirdly, the body may be entitled to restrict the costs of any action under the principles contained in the Aarhus Treaty. The UK will still be a party to that Treaty after Brexit.

The court could impose a fine on the government for breaking the law. The fine should be used, under the body’s direction, to fund environmental projects.

None of this will alter the rights of an individual or non-governmental organisation under the current rules. They can make a complaint to the body saying that the government is breaking environmental protection law. The body may disagree and decline to take action.

However, the right of the individual or NGO to bring their own judicial review – either against the body or the government – would still remain.

Photo by Glyn Lowe Photoworks.

John Bates

John Bates

Barrister, Old Square Chambers

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