8 - The Retained EU Law Bill and the Aarhus…

CPR changes, retained EU law, and state aid

A veritable smörgåsbord of news items this week on the Aarhus Convention, dear readers. In this blog we are looking at the changes to the CPR, the fallout from the Retained EU Law Bill, and some rumblings on state aid from our erstwhile law-mates across the Channel.

CPR changes incoming

Confirming once again that nothing in this world is sacred, the Aarhus Costs Rules are set to move from CPR 45 (Fixed Costs) to CPR 46 (Costs-Special Cases), as per Civil Procedure (Amendment No. 2) Rules 2023/572.

The reasoning behind this dramatic change is unclear, but it is tentatively pencilled in for October 2023. The explanatory note implies that the move may be a consequence of wider proposed CPR changes, which include extending fixed recoverable costs and creating a new “intermediate track” between the fast-track and multi-track.

The Retained EU Law Bill and the Aarhus Convention

It appears that the long-expected climbdown on the Retained EU law Bill has now taken place. You may recall this Bill previously promised to repeal all retained EU law that is not specifically saved, even those bits which the government has forgotten about (if only the same approach could be applied to work deadlines.)

However, very sensibly, the government has now decided that this approach to law-making probably wasn’t such a good idea- a change in approach which may or may not be related to the widely circulated legal opinion commissioned by WWF-UK, ClientEarth and the RSPB, which held that the Bill “disregards established methods of public participation and, in general, negates the kinds of transparency and accountability of the executive to the UK Parliament and devolved legislatures that is inherent and necessary in any democratic society.” Pretty strong stuff. Much had been made not only on the Bill’s impacts on the UK constitution, but also the impact on poor DEFRA officials, who- free of the administrative burden of the sunset clause- can now happily get on with much more important things than making lists of retained EU environmental law for 7 hours 24 minutes a day, 5 days a week.

Abandoning the sunset clause also has some key benefits for the Aarhus Convention. The impact of the Bill on Aarhus obligations has already been considered by the Interim Environmental Protection Assessor for Wales (IEPAW), the post-Brexit green watchdog for Wales. Their report highlights in particular the Aarhus-derived right for citizens to participate during the preparation of measures that may have an effect on the environment. IEPAW thought that depriving the public of the opportunity to contribute to changes in environmental law through consultation “could be considered a breach of the convention”. The report also notes the UK’s obligations under Article 391 of the UK-EU Trade and Cooperation Agreement, under which neither the UK nor the EU should “…weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period”.

Were IEPAW right that the sunset clause would have put us in breach of our Aarhus obligations? It seems to me a strong case can be made that they were. Article 8 of the Convention guarantees a right to public participation during the preparation of legally binding normative instruments “that may have a significant effect on the environment.” The abandoned sunset clause in the Bill created a cliff-edge scenario where any environmental regulations that the government has forgotten about would be automatically repealed without any consultation at all. Serious environmental consequences with no public involvement. It certainly sounded fishy to me! A very good thing, in this author’s view, that common sense has prevailed, and there is one less case for the Aarhus Compliance Committee.

EU still in breach of the Convention…

As long ago as 2021, the Aarhus Compliance Committee held that the EU’s state aid laws, which only allow businesses to challenge state aid decisions in court, were in breach of the Aarhus Convention (ACCC/C/2015/128). The European Commission initiated a 3 month consultation between July and October 2022 to consider various options to rectify this. Then, seven months of silence.

On 17 May 2023, in a crisp 13 pages, the Commission finally released its response. It is safe to say that it isn’t the most committal of documents:

“The outcome of the consultation process strengthens the need for further careful assessment to find an optimal solution to address the findings of the ACCC on the review of State aid decisions in the light of the EU’s obligations under the Aarhus Convention while taking into account the specificities of State aid…

…

The Commission concludes that ensuring compliance with the ACCC findings in case ACCC/C/2015/128 requires an adjustment to the existing legal framework or equivalent measure. The Commission concludes that the status quo would raise issues of compliance with the ACCC findings, taking into account the EU’s obligations under the Aarhus Convention.”

[That would follow from the ACCC’s finding that the EU’s state aid laws breach the Convention- Ed.]

…

“As for the next steps, the Commission will analyse the impacts, including costs and benefits, of possible measures in an impact assessment according to the ‘better regulation’ rules”.

We await the results of the Commission’s further analysis: but I wouldn’t expect it this side of Christmas.

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.