15 – The status of decisions of the Aarhus…

This blog is really a follow-up to “Aarhus Blog 5 – the status of the Aarhus Convention in English law” and looks more specifically at the status accorded to decisions made by the Aarhus Compliance Committee (“ACCC”) by the Courts of England & Wales.

Article 15 of the Aarhus Convention provides:

“The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.”

The ACCC is thus neither a court not a tribunal. The compliance mechanism of the Aarhus Convention allows the ACC to examine compliance issues of any Party concerned. The ACCC adopts findings and if non-compliance is found, may make recommendations either to the Meeting of the Parties, or, with the Party’s agreement, directly to the Party concerned: see paragraph 36(b) and 37(b) of the annex to decision I/7 adopted by the Meeting of the Parties. So whether reliance may properly be placed on ACCC decisions before they have been considered and endorsed by the Meeting of the Parties is questionable. That is something that I may look at in detail in a future blog. For present purposes I leave that issue to one side.

The membership of the ACCC is governed by Decision I/7. Its members need not be lawyers but usually are.

The starting point in terms of the status of ACCC decisions in our domestic law is what was said by Lord Carnwath in Walton v Scottish Ministers [2013] P.T.S.R. 51 at para 100 namely that:

“… our conclusion has persuasive support from the decision of the Aarhus Compliance Committee on a complaint made by Road Sense in May 2009 (that is, after the conclusion of the inquiry, but before the final decision). The Committee is responsible for enforcement of the Aarhus Convention, to which the UK is a party (more fully, the UNECE Convention on Access to Information, Public Participation, in Decision-making, and Access to Justice in Environmental Matters). Although the Convention is not part of domestic law as such (except where incorporated through European Directives), and is no longer directly relied on in this appeal, the decisions of the Committee deserve respect on issues relating to standards of public participation.”

Lord Carnwath’s judgment was agreed with by three of the other members of the Court, with Lord Hope at para. 150 making express reference to the Road Sense ACCC decision.

So, ACCC decisions are in no way binding on our Courts. Their decisions are though relevant considerations and it is said deserving of “respect”.

Westlaw shows that there are a number of English cases where decisions of the ACCC have been referred to:

The most oft-cited ACCC decision is the Port of Tyne case ACCC/C/2008/33 in which the ACCC made findings that the UK’s costs rules and certain of its delay rules were not compliant with the Convention and also expressed “concerns” but did not make findings against the UK in relation to the Wednesbury standard of review in environmental cases.:

a. Port of Tyne was cited in R. (Hillingdon LBC) v Secretary of State for Transport [2017] 1 W.L.R. 2166 in relation to delay issues but was given short shrift with the Court saying (at para. 75) that “The Aarhus point goes nowhere” and that “there is nothing in article 9 which prevents a signatory state from having in place provisions regulating the time at which a claimant may bring a challenge in the domestic courts. Nor is there anything in the one decision of the Aarhus Convention Compliance Committee [Port of Tyne] referred to in argument which suggests incompatibility with article 9 …”;

b. In the case of R. (Evans) v Secretary of State for Communities and Local Government [2013] J.P.L. 1027 at paras. 32–42 Beatson LJ expressly rejected the idea that the standard of review had been altered by the Aarhus Convention,
“32 Mr Wolfe’s submissions on this part of the application were essentially that the decisions of this Court which adopted and confirmed the Wednesbury approach either pre-date the Aarhus Convention and its enactment into EU and national law and developments in the jurisprudence of the CJEU, or are distinguishable or per incuriam. He placed particular weight on the Aarhus Convention Compliance Committee’s December 2010 report expressing concern about the Wednesbury approach …
33 In fact, the decisions of this court in Bowen-West and Loader were in 2012, and the decision of the CJEU in Case C/508/03 Commission v United Kingdom (2007) Env. L.R. 1 in 2006 post-dated those developments …
37. The Aarhus Convention and the views of the Aarhus Convention Compliance Committee do not ultimately assist Mr Wolfe. First, it is clear from the jurisprudence that the Convention is not part of domestic law or EU law: for example, see Walton v Scottish Ministers [2012] UKSC 44 at [100]. Secondly, the Compliance Committee has reached no concluded view that the Wednesbury approach is impermissible. Moreover, its expression of concern is general and unparticularised. For example, it only refers to Wednesbury and does not refer to the other established heads of public law review; error of law, error of fact, and the principles of relevance and of propriety of purpose which are sometimes insufficiently distinguished from Lord Greene’s residual category, which Lord Diplock termed “irrationality”. It also does not identify the variations in the intensity of Wednesbury review that reflect the nature of the interest affected.
38. The cases of Bowen-West and Loader were decided since the Aarhus Convention Compliance Committee expressed its concern but in neither did this court consider that put into question the existing approach. The Committee’s view and concern is undoubtedly worthy of respect. But, even if it had reached the view that the Wednesbury approach does not enable the court to assess the substantive and procedural legality of the Secretary of State’s decision, its view would have had no direct legal consequence. Thirdly, as far as Article 9 of the Aarhus Convention is concerned, although this has been brought into EU law as Article 10A of the EIA Directive, it did not result in the later decision of the CJEU in Commission v UK criticising the use of the Wednesbury rule.”

2. The Port of Tyne decision is also referred to in R (Evans) v Attorney-General [2014] Q.B. 855 at para. 123 in the context again of Wednesbury review. And see also in this context McMorn v Natural England [2016] P.T.S.R. 750 at paras 204 – 205 applying a more intense form of scrutiny that ordinary Wednesbury in an Aarhus case albeit not for Aarhus related reasons and referring to the Port of Tyne case (cf R. (Dillner) v Sheffield City Council [2016] Env. L.R. 31 at paras. 184 – 185 and R. (Buckinghamshire CC) v Secretary of State for Transport [2013] EWHC 481 [2013] EWHC 481 (Admin) at para. 116).

3. In R. (Peel Investments (North) Ltd) v Health and Safety Executive [2013] EWHC 1012 (Admin) the Judge was referred to a decision of the ACCC in respect of Albania and the Judge said: “I was reminded, by reference to the judgment of Lord Carnwath in the Walton case (at paragraph 100), that decisions of the Compliance Committee ought to be given full weight.” That is not what Lord Carnwath said.

4. Decisions of the ACCC are also cited in other cases, without any explicit assessment of their status, see e.g. R. (on Garner) v Elmbridge BC [2012] P.T.S.R. 250 at paras 43 – 44; Venn v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 2328 at para. 34 and R. (Royal Society for the Protection of Birds) v Secretary of State for Justice [2017] 5 Costs L.O. 691 at paras. 44 and 45.

What then can be drawn from these cases?

The decisions of the ACCC are not binding on our Courts;
The decisions of the ACCC are, however, relevant considerations;
These decisions, in Lord Carnwath words, should be given “respect”.
But it is not correct to read this as requiring that “full weight” be given to such decisions;
It cannot be forgotten that the ACCC is not a court. It does not follow court-like processes. Sometimes just how far it may stray from the behaviour of a court or tribunal is surprising to English lawyers: see e.g. the Port of Tyne decision of the ACCC at para. 18 and paras. 6–11 of the report of the twenty-fifth meeting of the ACCC (ECE/MP.PP/C.1/2009/6). This will be the subject of another blog.
The ACCC can, and often does, itself refuse to follow decisions on the Aarhus Convention made by other international courts e.g. the Court of Justice of the European Union;
The respect to be given to any particular decision of the ACCC may turn on factors such as:

a. Whether the matter relied on is an actual finding against the UK or merely the expression of a concern (as with Wednesbury review in the Port of Tyne case);
b. Whether the findings have been endorsed, and if so in full or in part only, by the Meeting of the Parties;
c. Whether the ACCC’s conclusions are properly substantiated and reasoned;
d. Whether it appears that the ACCC has in fact correctly understood English law and practice in reaching the conclusion it did and whether the Court agrees with its analysis;
e. Whether the ACCC’s decision is inconsistent with other domestic or international case-law including that of the CJEU.

Authors

– 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 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.