Welcome, Dear Reader, back to the Aarhus blog (not to be confused with the pirate-themed Yaarhus Blog: which I must stress, hopefully for the final time, that we have no affiliation with. Potential sponsors please take note).

This month the UK may be in deep waters (…) when it comes to compliance with its treaty obligations: the long-awaited ‘Brexit’ decision has landed. And it is a spicy one…

Click here to read the draft findings of the Aarhus Convention Compliance Committee (ACCC).

What was the decision about? Well- Remember Brexit? I ‘member Brexit. It was the best of times: it was the worst of times. You may recall that on 23 June 2016, a referendum was held in which 51.9% of voters were in favour of leaving the EU, which formed the clearest possible basis for a hard Brexit. This was set out in the Withdrawal Bill, later the European Union (Withdrawal) Act 2018, which provided among other things that after exit day UK courts would not be bound by decisions of the CJEU and that Ministers would have broad powers to remedy any legal hiccups arising from the aforementioned conscious uncoupling, including deleting large quantities of retained EU law (including environmental law). The effect of a hard Brexit included withdrawal from the EU’s Emissions Trading Scheme, Common Agricultural Policy Framework and the Common Fisheries Policy.

There was no formal public consultation in the preparation of the Withdrawal Bill before it was presented to Parliament. The key allegation before the ACCC was that the lack of consultation failed to meet the public participation requirements of the Aarhus Convention. The Committee had already found in ACCC/C/2014/120 (Slovakia) that article 8 of the Convention applied to the preparation of primary legislation by executive bodies. The Committee rejected the UK’s invitation to revisit this finding ([94] of the decision onwards) and also rejected the UK’s contention that prior to the laying of the draft legislation before Parliament, the drafters were acting in a legislative capacity for the purposes of the exclusion in Article 2(2) of the Convention (which provides that bodies or institutions acting in a “legislative capacity” are not subject to the Convention). The Committee concluded at [99]:

“99. Based on the foregoing, the Committee affirms its previous findings that article 8 of the Convention applies to the preparation of draft primary legislation by executive bodies to be adopted by national parliaments. When engaged in preparing such draft laws public authorities, including members of the executive, do not act in a legislative capacity. Once the draft is submitted to the body or institution with legislative capacity and that body commences its deliberations on the draft, the exception in article 2 (2) excluding ‘bodies acting in a legislative capacity’ from the scope of the Convention will apply.”

The remaining questions were whether the Withdrawal Bill may have a significant effect on the environment (no surprises on the conclusion: see [106]) and finally whether the requirements of Article 8 were met by the Withdrawal Bill. The Committee made clear firstly what the requirements were at [112] (not dissimilar to the Sedley/Gunning
consultation principles in domestic public law):

“while article 8 gives the Parties a degree of leeway in deciding how to fulfil their obligations to provide for effective public participation, paragraphs (a)-(c) and the final sentence thereunder together impose a minimum set of requirements that must be met, namely: 

(a) Time-frames sufficient for effective participation should be fixed:

(b) Draft rules should be published or otherwise made publicly available;

(c) The public should be given the opportunity to comment, directly or through representative consultative bodies;

(d) The result of the public participation shall be taken into account as far as possible.”

The Committee held that:

a) Given the relevant period for consideration was prior to legislative deliberation, there was no evidence before it that there was a time frame for effective public participation during this period. Accordingly this requirement was breached ([115]-[119]).

b) Given the draft text of the Withdrawal Bill was not provided prior to its introduction to Parliament, the requirement for the publication of draft rules was also breached ([120]-[121]).

c) The public did not have an adequate opportunity to comment on the draft text prior to it being introduced to Parliament ([122]-[131]). This followed from the text not being available before this stage. Also, “The general discussions and debate about European Union membership that took place in 2015, 2016 and 2017 in no way meet the obligation to give the public the opportunity to comment during the preparation by DExEU of the Withdrawal Bill” ([123]).

d) Perhaps unsurprisingly, the absence of a proper consultation meant that the results of public participation were not taken into account by the UK ([132]-[136]). There also needed to have been an explanation of the public participation process and how the results were taken into account ([134]).

Finally, the ACCC concluded that this failure highlighted a deficiency in the UK’s legislative process such that it had failed to take the necessary legislative, regulatory and other measures to establish and maintain a clear, transparent and consistent framework to ensure the effective implementation of the Convention, in breach of Article 3(1) of the Convention ([138]-[144]).

The conclusions and recommendations begin at [145] and are as follows:

A. Main findings with regard to non-compliance

1. The Committee finds that:

(a) By failing, during the preparation by DExEU of the Withdrawal Bill: (i) to fix time-frames sufficient for effective public participation; (ii) to publish or otherwise make available the draft rules in advance; (iii) to give the public the opportunity to comment; and (iv) to take into account the result of the public participation as far as possible, the Party concerned failed to comply with article 8 of the Convention.

(b) By not having taken the necessary legislative, regulatory or other measures to establish and maintain a consistent framework to promote effective public participation during the preparation of draft legislation that may have a significant effect on the environment under article 8 of the Convention, the Party concerned has failed to comply with article 3 (1) of the Convention.

B. Recommendations

2. The Committee, pursuant to paragraph 36 (b) of the annex to decision I/7 of the Meeting of the Parties, and [noting the agreement of the Party concerned that the Committee take the measures requested in paragraph 37 (b) of the annex to decision I/7,] recommends that the Party concerned take the necessary legislative, regulatory or other measures to establish a consistent framework to promote effective public participation during the preparation of draft legislation that may have a significant effect on the environment.

In short, some changes are needed to the UK legislative process in order to bring us into compliance with the Aarhus Convention.

Or, we could just take the obvious course of action when faced with an adverse decision on the international stage, and withdraw the UK from the Aarhus Convention entirely. (That may however require an adequate public consultation, given the likely effects of such a withdrawal on the environment).

Though- that actually seems to be what some are now calling for: see this article where my esteemed co-editor Nick valiantly explains in neutral terms what the Aarhus Convention does against a somewhat one-sided backdrop.

But I digress. More detailed analysis on the ACCC’s findings and their implications no doubt to follow on this Blog! As always, stay tuned for more…

And finally, I have been asked by our Marketing team to mention: if you are one of our three regular readers, then please do pass on this lifetime free subscription link to family, friends and indeed those you barely know. An Aarhus Blog subscription makes an excellent summer gift- I would certainly be asking for one if I wasn’t a subscriber already.

This blog post was written by Alex Shattock.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.