7 - What next for Aarhus?

As discussed in James Maurici KC’s recent blog post save to the limited extent provided by the CPR in respect of costs protections, the Aarhus Convention has not been directly incorporated into domestic law.  Nor is it directly enforceable in the domestic courts: see, e.g., Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328 at [33]. 

In terms of the other rights and protections contained in the Convention, those are otherwise given effect through secondary legislation implementing EU Directives and/or otherwise made under the auspices of s.2 of the (former) European Communities Act 1972, such as: 

• The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (implementing the EIA Directive and giving effect to Article 6 of the Aarhus Convention); 
• The Environmental Assessment of Plans and Programmes Regulations 2004 (implementing the SEA Directive and giving effect to Article 7 of the Aarhus Convention); and 
• The Environmental Information Regulations 2004 (implementing Council Directive 2003/4/EC on public access to environmental information and giving effect to Articles 4, 5 and 9(1) of the Aarhus Convention) 

Each of those Regulations is “retained EU law” saved by s.2 of the European Union (Withdrawal) Act 2018.    If the Retained EU Law (Revocation and Reform) Bill (“RELRRB”) passes in the form in which it was originally laid before Parliament, those Regulations (and thus the rights and protections under the Aarhus Convention to which they give effect) would be revoked at the end of 2023, unless: 

1. a Minister of the Crown provides by regulations that a later date shall apply for those Regulations (clause 2 of RELRRB) – with a longstop date of 23 June 2026; or 
2. The ‘relevant national authority’ (a Minister of the Crown and/or devolved authority) decides to ‘restate’ the Regulations, i.e. to re-enact but as domestic law rather than legislation derived from EU law / retained under the 2018 Act (clause 12 of the RELRRB). 

As of 10 May 2023, it appears that the Government has rowed-back significantly on the extent of legislation likely to be affected by these “sunset” provisions, with the announcement by way of WMS¹ that the Government tabling an amendment for Lords Report, which would replace the current sunset in the Bill with a list of the retained EU laws that it intended to revoke under the Bill at the end of 2023.   

That list, which is to be set out in Schedule 1 to the Bill,² does not currently include the various environmental impact assessment Regulations (save, oddly, the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003, and various amending Regulations thereof) or the Environmental Information Regulations 2004.  The basic framework for public participation in environmental decision-making would therefore seem, for the moment, to remain unchanged, if the Bill passes in its proposed amended form.

However, it seems likely that this may be only a temporary reprieve – given the explanation provided for the Government’s change in approach – and that a number of decisions are going to have to be made going forward in respect of the frameworks which currently give effect to the Aarhus protections in the domestic context.   

One option would be for the Government to retain those frameworks essentially as they are, with any necessary modifications to reflect the change from retained EU law to restated law. 

A second option would be to replace the existing framework with a wholly new framework for assessing the environmental effects of plans or projects, and/or public participation in the same, with a new or revised regime for accessing environmental information outside of those processes.     

This appears to have been what may have been envisaged, at least in/around May 2022, with the Explanatory Memorandum to the Levelling-up and Regeneration Bill (“LURB”)  as lodged explaining that Part 5 of the Bill (Part 6 in the version brought from the Commons to the Lords)  “replaces the EU environmental assessment system with a new framework for Environmental Outcome Report”³.  Clauses 138 – 141 of the Bill (if enacted) would confer a power on the Secretary of State to make regulations specifying outcomes relating to environmental protection in the UK or a relevant offshore area (clause 138); requiring an environmental outcomes report to be prepared in relation to a relevant proposed consent or plan (clause 139) and the assessment or monitoring of the extent to which the relevant plan or project actually affects the delivery of a specified environmental outcome (clause 139).   

There is nothing in clauses 138-141 which specifically addresses public participation in those processes, but this is addressed in clause 142(3) which provides that: 

“(3) In exercising functions under this Part, the Secretary of State must to seek to ensure that (so far as would not otherwise be the case) arrangements will exist under which the public will be informed of any proposed relevant consent or proposed relevant plan in sufficient detail, and at a sufficiently early stage, to enable adequate public engagement to take place.” 

What is meant by “adequate public engagement”?  Clause 142(4) helpfully tells us that this means “such engagement with the public, in relation to the proposed relevant consent or proposed relevant plan, as the Secretary of State considers appropriate”. 

That might, potentially, raise some alarm bells – not least given the statements in the September 2022 Growth Plan⁴ that new legislation will be being brought forward to address barriers and delays to infrastructure consenting “by reducing unnecessary burdens to speed up the delivery of much-needed infrastructure” including “reducing the burden of environmental assessments” and “reducing bureaucracy in the consultation process” (para 3.36). 

Whilst not expressly linked to the proposals in the LURB,⁵ assuming for present purposes that the proposed legislation could include the regulations to be made by the Secretary of State under the powers discussed above, that would seem to indicate a potential reduction in the extent or scope of the public consultation / participation currently provided for by EU derived legislation, at least in connection with large infrastructure projects (which arguably have the potential for the greatest environmental impacts / impacts across the greatest geographical area of the myriad of projects caught by EIA requirements today). 

There is, however, a safeguard – at nominally – to be found in clause 142(2) of LURB.  This provides that: 

“(2) EOR Regulations may not contain provision that is inconsistent with the implementation of the international obligations of the United Kingdom relating to the assessment of relevant plans and relevant consents” 

This would seem to bring Articles 6 & 7 of the Aarhus Convention into play.   

Similarly, clause 142(1) – another important general safeguard – provides that: 

“(1) The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time the Act is passed”.⁶ 

“Environmental law” is defined in clause 142(4) as meaning “environmental law (within the meaning of Part 1 of the Environment Act 2021), whether or not the environmental law is in force”.  The definition, for the purposes of Part 1 of the Environment Act 2021 is to be found in s.46 of the Act, and, in broad terms, means “any legislative provision to the extent that it – (a) is mainly concerned with environmental protection, and (b) is not concerned with an excluded matter”, excluded matters being defined in s.46(2) and including “(a) disclosure of or access to information”. 

Depending on the approach taken to public participation / consultation in any regulations made under Part 6 of LURB (if enacted) this could give rise to some interesting arguments as to the extent to which those provisions are, or are not “inconsistent” with the obligations set out in the Aarhus Convention (and the extent to which the courts can have regard to the Convention in construing or applying that legislation – no doubt the subject of a later blog post!) or whether or to what extent public participation or the product thereof affects the “overall level of environmental protection” afforded by that legislation. 

A third option would be some sort of half-way house: retaining the basic structure of the existing regimes with more substantial modifications and/or addendums.   

We are, quite frankly, in a world of known unknowns – or possibly unknown unknowns.   

No doubt this will be revisited in future blog posts.  But in the meantime, three thoughts. 

1. We seem to have a broad direction of travel for EIA and SEA with the provisions set out in Part 6 of LURB.  But what about EIR?  Might the RELRRB (or whatever legislation may succeed it) provide an opportunity for Parliament to curtail – or even substantially curtail – the existing rights of access to environmental information, or strengthen the exemptions to the duty to disclose?
2. Standing.  Article 9(3) of the Convention provides that each Party shall ensure “where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”.  Standing has, historically, been quite broadly construed by the domestic courts.  But what if Parliament were to legislate to more tightly circumscribe ‘standing’ to challenge planning or policy decisions, pursuant to the Government’s stated objective to ‘speed up’ delivery of infrastructure “by reducing unnecessary burdens” or otherwise remove barriers to the timely delivery of development?
3. Withdrawal.  With the recent suggestions that the Government might be prepared to considering withdrawing from the ECHR, might the Aarhus Convention be next in line? 

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.