Vice Chair: Carol Day, RSPB
Head of Policy and Campaigns: Dan Pescod, Link
Brexit Implications
Link’s Legal Strategy Group is focussing on how best to retain the suite of environmental and animal welfare protections afforded by EU legislation once the UK leaves the EU. The Group is working on these Brexit issues with Greener UK, Sustain and others.
In the summer of 2018, the Group developed a Link response to the Government’s consultation on principles and governance.
The Government has promised that, when the UK leaves the EU, it would put in place a “world-leading” green watchdog to uphold high environmental standards. However, the proposals in the consultation document pointed to the creation of far weaker post-Brexit governance than that which is in place currently under the European Commission and Court of Justice. Not least, the watchdog the Government envisaged in the consultation document would not have the legal “teeth” to take public bodies to court or to issue fines. Key environmental principles such as preventive action to avert environmental damage and the “polluter pays” principle might not have strong legal weight, and instead be enshrined merely in a “policy statement”.
Key environmental principles such as preventive action to avert environmental damage and the “polluter pays” principle might not have strong legal weight, and instead be enshrined merely in a “policy statement”.
Link pointed out the deficiencies of the proposed watchdog and policy statement on environmental principles, and is calling for the truly world-class governance we need to help reverse the drastic decline in nature we have seen these past decades.
Since September 2018, Link’s lawyers and policy experts have been working with our colleagues in Greener UK to check the large amount of Brexit-related secondary legislation going through the Westminster parliament. The purpose of the 86 Defra “statutory instruments”, (SIs) which come from the European Union Withdrawal Act 2018, is to provide legal continuity as the UK leaves the EU by bringing into the UK’s statute book all EU laws that prior to Brexit are directly applicable to the UK as an EU member. These SIs will also transfer powers (such as for monitoring / reporting) from EU institutions to UK institutions.
The Group is looking at SIs that cover all Link working group areas, including issues such as wildlife crime, environmental impact assessments and habitats regulations etc. As such, it is vital to nature’s future wellbeing that we spot any inadvertent weakening of the EU legislation being transposed. Where we do have concerns we are raising these with Defra and, if need, be with Parliament.
Just before the December 2018 recess, the Government published its draft Environment Bill, which contains legislative proposals on principles and governance, building on the consolidation mentioned above. Experts in our member organisations have expressed concern that the proposal will not create a strong, independent, well-financed green watchdog with the power to hold Government and public bodies to account, and not enshrine in law a comprehensive set of environmental principles (such as the “polluter pays” and the “precautionary principle”). Further analysis is set out in a Link blog by David Abrahams, Lawyer at Friends of the Earth.
The Group developed a response to the Environment, Food and Rural Affairs Committee and the Environmental Audit Committee’s joint call for written evidence for pre-legislative scrutiny of the draft Environment Bill. The response stressed, among other things, the need for a strong independent green watchdog with the teeth and independence to ensure compliance with environmental law after we leave the EU.
Access to Justice
In late 2017 three members of Link's Legal Strategy Group (RSPB, Friends of the Earth and Client Earth) secured a huge victory, with a High Court ruling that the UK Government that must change its rules for environmental cases to protect those taking legal action from incurring unreasonable costs. Mr. Justice Dove stated that costs should remain capped at the beginning of a case, giving more certainty to individuals or charities bringing a case to court.
As a result of the ruling, a number of amendments to the Civil Procedure Rules came into effect on 6 April 2018. These include (i) clarification on the nature and extent of financial information that must be provided when applying for Judicial Review (including third party support) and (ii) the circumstances in which late variations to the default cap can be made.
The European Court of Justice recently handed down another judgment on “prohibitive expense” (Case C-470/16). Link Legal Strategy Group members RSPB and Friends of the Earth have written to the Ministry of Justice in light of the judgment, as a further change to the Civil Procedure Rules is required.
In early 2019, along with our sister Links, we provided a statement to the Aarhus Access to Justice Task Force meeting; and a response to the European Commission’s consultation on access to justice.
Judicial Review
The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment, including the right to access justice and challenge public decisions on environmental law.
In December 2017, Link Legal Strategy Group members RSPB and Friends of the Earth, along with Friends of the Earth Scotland and law firm Leigh Day, asked the Aarhus Convention’s Compliance Committee (the ACCC) to investigate the UK’s process for reviewing the legality of certain decisions that fall under the Convention.
Currently, UK courts conducting a Judicial Review of a public body’s decision on an environmentally important matter will not overturn that public body’s decision unless they deem it so outrageous as to be perverse. That is a very high bar to pass, and the organisations mentioned above question whether it is too high to fit with the UK’s commitments to the Aarhus convention.
We hope to have the Committee’s findings in late 2019.
For further information, contact Dan Pescod, Link’s Head of Policy and Advocacy
Last updated: 30 September 2019
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