23 - Conflicts of interest and the procedures of…

I touched on this in Blog 5. Sometimes the procedures followed by the ACCC may seem surprising to the eyes of an English lawyer.

In Port of Tyne decision of the ACCC one finds this at para. 18 “During the proceedings, the Party concerned alleged that a member of the Committee had a conflict of interest with respect to two other communications then ongoing regarding the United Kingdom, ACCC/C/2008/23 and ACCC/C/2008/27. The Committee member concerned did not participate in the deliberations on the findings in those cases, nor in the deliberations on the findings in the present communication. Further details are set out in paragraphs 6–11 of the report of the twenty-fifth meeting of the Committee (ECE/MP.PP/C.1/2009/6).” This report says:

“6. By letter dated 22 July 2009, the United Kingdom had alleged that a member of the Committee, Ms. Svitlana Kravchenko, had a conflict of interest with respect to ACCC/C/2008/23 (United Kingdom) and ACCC/C/2008/27 (United Kingdom) on account of the fact that Ms. Kravchenko’s husband, Mr. John Bonine, had made an intervention as an observer at the twenty-fourth meeting of the Committee without the personal relationship having been disclosed to those present at the meeting. Upon becoming aware of the allegation, the Committee had invited and received the reaction of Ms. Kravchenko. In the view of Ms. Kravchenko, a public intervention by an observer not party to the case did not create a conflict of interest, but she offered to withdraw from the deliberations on the two communications at issue because the United Kingdom had questioned the Committee’s procedures and reputation. The secretariat had notified the United Kingdom and the respective communicants that the matter would be discussed at the twenty-fifth meeting of the Committee.”

So, to understand this the background is as follows: It is hard-wired into the procedure before the ACCC that NGO observers may attend the hearings of communications (both at the preliminary and substantive stages) and make representations to the Committee on the merits of the cases before it.

In Cases ACCC/C/2008/23 and 33 one of those NGO observers, and who made representations in support of the Communicants against the UK, was married (!) to one of the ACCC members. This fact was not disclosed but discovered by the UK lawyers post the hearing in Port of Tyne. A Google search revealed a book co-written by the NGO observer and the ACCC member and dedicated to “our daughter”.

The suggestion by the ACCC in the quotation set out above that this gave rise to no conflict is rather difficult for English lawyers to accept.

Report ECE/MP.PP/C.1/2009/6 continues:

“7. At the meeting, during a closed session at which Ms. Kravchenko was not present, the Committee considered the United Kingdom’s allegation and Ms. Kravchenko’s reaction and prepared a draft statement in response to the United Kingdom’s questions and concerns. The draft statement set out that the Committee had decided that Ms. Kravchenko should not participate in the Committee’s preparation of findings with respect to communications ACCC/C/2008/23, ACCC/C/2008/27 and, as a further precaution, ACCC/C/2008/331, and made it clear that she had effectively withdrawn from the decision-making process prior to the preparation of a first draft by the curator for the cases concerning communications ACCC/C/2008/23 and ACCC/C/2008/27. The Chairperson then presented the draft statement in open session immediately prior to the discussion of communication ACCC/C/2008/33 (see paras. 32–34 below) and invited the comments of the United Kingdom, of the communicants with respect to communication ACCC/C/2008/33 and of other observers present.

8. During the discussion following the reading of the draft statement by the Chairperson, the United Kingdom asked for certain points of clarification concerning Ms. Kravchenko’s involvement in discussions on the findings prior to her withdrawal from the case. The Committee indicated that, although Ms. Kravchenko had participated in a brief initial discussion on the substance of communications ACCC/C/2008/23 and ACCC/C/2008/27 held in closed session at the Committee’s twenty-fourth meeting, any discussions prior to the point of her withdrawal had been of a very preliminary nature, to the extent that they could not reasonably be considered to “taint” the findings that would later be adopted. The United Kingdom requested further time to consider its position. It indicated that it had no objection to the discussion proceeding in open session of communication ACCC/C/2008/33.

9. The communicants with respect to communication ACCC/C/2008/33 and some other observers indicated that they had no objection to the draft statement or to proceeding with the discussion on communication ACCC/C/2008/33. The communicants with respect to communication ACCC/C/2008/33 further requested that if the United Kingdom were to suggest that future findings with respect to that communication would be “tainted”, the communicant would object and would wish to have the opportunity to respond in writing. The Committee agreed to this request, and also that the statements of the United Kingdom and the Committee would be forwarded to the communicants with respect to communications ACCC/C/2008/23 and ACCC/C/2009/27 for their comments.

10. Following the discussion on communication ACCC/C/2008/33, the United Kingdom, having reflected on the draft statement and the clarifications provided by the Committee, provided a written statement on 25 September 2009 in which it reiterated its concerns about the alleged conflict of interest and indicated that it considered that the incident had tainted not only any future findings with respect to communications ACCC/C/2008/23 and ACCC/C/2008/27, but also those with respect to ACCC/C/2008/33.

11. The Committee took note of the written statement provided by the United Kingdom. It then finalized its statement in a closed session at which Ms. Kravchenko was not present, having considered that all the issues raised by communicants and observers and in the statement by the United Kingdom had been addressed in the statement. The Committee agreed to annex its statement to the meeting report (see annex I) as well as the statement of the United Kingdom 25 September 2009 and any statements provided by the communicants (see annexes II to V).”

This all happened some time ago now and the ACCC has improved its processes, but it does show that it would be quite wrong to think of the ACCC as anything like a court or tribunal in the procedures that it follows.

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 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.