Compliance committee considers complaint alleging government breached Aarhus convention by not consulting public over withdrawal bill
January 9, 2018 — The British government may have breached a major “environmental democracy” law by failing to consult the public when drawing up Brexit legislation.
A UN-backed committee has confirmed it is considering a complaint from Friends of the Earth that the government’s EU withdrawal bill breached the Aarhus convention, which requires public consultation on any new environmental law.
Most of the UK’s environmental laws derive from or interact with EU law, and Friends of the Earth (FoE) has raised concerns that the bill gives ministers “unique and wide-ranging powers” to amend or delete EU-derived environmental law without public consultation, if ministers consider it appropriate.
According to Defra, “over 1,100 core pieces of directly applicable EU legislation and national implementing legislation” fall within the department’s remit.
The “polluter pays” principle and the precautionary principle could both be affected, as could the public’s ability to challenge changes to environmental laws.
William Rundle, lawyer for Friends of the Earth, said: “The government said Brexit was about taking back control, yet it has ignored the views of the UK people in taking it forwards. There has been no consultation on what the withdrawal bill could mean for the environment and environmental legal protections, or what is the best way forwards.
“The Aarhus convention requires effective consultation when new laws are being prepared that can significantly affect the environment, such as the EU withdrawal bill. This would have allowed environmental issues to be debated and understood, but also built democratic accountability and public confidence.
“The current approach by government in conducting Brexit fails to do this; they didn’t even try. Nobody thought Brexit would be easy, but the government cannot ignore its legal obligations, or the views of the people.”
According to the Aarhus convention’s three pillars, information relating to environmental legislation must be provided by public authorities “in a timely and transparent manner”, and the public must be allowed to participate in the development of new laws at an early stage of their preparation. The third pillar is public access to justice, should a party violate or fail to adhere to environmental law or the convention’s principles.
The government may have breached the convention in two ways, FoE says: by failing to set out a consistent legal framework to allow public participation in the preparation of new environmental legislation (article 3), and by not giving the public an opportunity to comment on the bill before it was presented to parliament to be made into law (article 8). FoE says the government failed to consult with the public, and by calling a snap election, any possible engagement with the bill’s white paper was prevented.
In a letter to Friends of the Earth, the Aarhus convention compliance committee says: “the committee has, on a preliminary basis, determined the communicant’s allegation concerning the preparation of the draft ‘great repeal bill’ and the alleged lack of a clear, transparent and consistent framework to implement article 8 … to be admissible”.
Michael Mason, associate professor at the London School of Economics, says the government remains legally bound by the Aarhus convention after withdrawal from the EU, and by abolishing laws relating to Aarhus provisions the UK would be in breach of the treaty.
He says: “The UK would not be able to cherry-pick provisions in the convention: the UK is either fully in or would have to pull out from the treaty. To stay in, the UK government will have to retain all EU-derived law implementing Aarhus obligations.
“A withdrawal from the Aarhus convention would be disastrous for UK environmental policy.”
A House of Lords report calls the EU withdrawal bill a “bill of the first order in terms of law-making powers being granted to ministers”. It says “this bill is expected to generate another 800 to 1,000 statutory instruments in the near future.”
The bill does not require that current environmental standards are maintained after Brexit, nor does it contain a general requirement that the public should be consulted on potentially significant changes to environmental legislation. It does not require ministers to replace the existing European commission complaints procedure on breaches of EU-derived environmental law, which is currently available to UK citizens free of charge. The UK government could still include a requirement for public consultation, however.
In February 2017, campaigners won a case against the Ministry of Justice over proposed changes to cost protection orders that could have made legal challenges to government over environmental issues too financially risky to pursue. A UN committee at the time criticised the government for failing to meet its legal obligations on access to justice under the Aarhus convention.
A government spokesperson said: “The purpose of the withdrawal bill is to provide a functioning statute book on the day we leave the EU – it is an essential bill in the national interest. While we can’t comment on proceedings, we believe we have complied with all of the relevant obligations in developing this crucial legislation and remain committed to maintaining the highest environmental standards. We will be submitting our full response in due course.”
The government now has until 5 June to provide its written response to the complaint. The committee will then decide whether the UK government is in breach of its obligations.