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Aarhus Compliance Committee issues draft findings in Crossrail communication

DATE: 01 May 2013

The Aarhus Compliance Committee in Geneva today issued draft findings in ACCC/C/2011/61 finding that the UK was “not in non-compliance”.

The communication alleged:

“a failure of the United Kingdom to comply with provisions of the Convention on public participation and access to justice in relation to the planning and construction of the Crossrail project in the metropolitan London area. In particular, the communication alleges that the Crossrail Act 2008 misapplied the requirements for obtaining consent relating to conservation areas and listed buildings, which normally provided for public participation, and thus that the Party concerned is not in compliance with article 6, paragraph 7, of the Convention. The communication also alleges that this constitutes non-compliance with article 3, paragraphs 1 and 9, of the Convention. In addition, the communication alleges that as a result of the Crossrail Act misapplying the requirements relating to conservation areas and listed buildings, there were no planning or Conservation Area Consents or Listed Building Consents to challenge and this according to the communication constitutes non-compliance with article 9, paragraphs 2, 3 and 4, as well as with article 3, paragraph 1, of the Convention.”

In relation to Article 9 and access to justice there was discussion of the fact that it was not possible in the UK to judicially review an Act of Parliament save for on EU grounds and when seeking a declaration of incompatibility under the Human Rights Act.

The Committee’s draft findings are:

“Crossrail Act – categorization under the Convention
52. The Committee first examines the nature of the hybrid bill and whether it falls under article 6 or article 8 of the Convention. As already established in previous findings, this must be determined on a contextual basis, taking into account the legal effects of the act, while its label under the domestic law of the Party concerned is not decisive (cf. findings concerning Belgium, ECE/MP.PP/C.1/2006/4/Add.2/, para. 29; European Community ACCC/C/2006/17, ECE/MP.PP/C.1/2008/5/Add.10, 2 May 2008, para. 42).
53. The legal effect of the Crossrail Act, following the hybrid bill procedure, is the authorization of a project, the Crossrail. The Act is processed as a “hybrid bill” because of the magnitude of the project affecting national interests in general. Had it been an executive regulation or an act introducing legislative changes applicable to all, it would have been processed following the public bill process. As such, it does not fall under article 8 of the Convention, because, while the system of the Party concerned, recognizing the impact of such large project for the national policies, including transport, economy, employment, etc., opts for a procedure that passes through Parliament, the act ultimately permits a specific activity. Therefore, the Act is a decision falling under article 6 of the Convention.
54. In this respect, the Committee also notes that the hybrid bill process is a process under the Parliament, the body that traditionally manifests the legislative powers in a democratic state. Article 2, paragraph 2, of the Convention, excludes from the definition of a public authority “bodies or institutions acting in a … legislative capacity”. In the present case, however, the Parliament is no longer “acting” in a legislative capacity, but rather as the “public authority” authorizing a project. The fact that the Party concerned has in place an integrated procedure for “hybrid bills” in order for the Government to secure all powers and consents necessary for the authorization of major projects, instead of having fragmented procedures going through a number of different public authorities, central and/or regional, does not change the nature of the act as a decision permitting the project. The Committee observes that if all large-scale projects were subject to parliamentary authorizations procedure and evoked article 2, paragraph 2, of the Convention, then there is a risk that important projects would never be subject to the public participation requirements of the Convention and this would run counter its objectives.
55. The project concerns the construction of a high-frequency railway, from east to west, across London and with connections to the underground rail network. The legislation of the Party concerned (Standing Order 27A) requires for environmental impact assessment procedure and the deposit of an Environmental Statement. Therefore, the project is an activity under article 6, paragraph 1(a), in conjunction with paragraph 20 of the annex to the Convention.
56. It is noted, that processes similar to the hybrid bill process, under a different label, exist under the jurisdictions of other Parties to the Convention (see e.g. the recent jurisprudence of the Court of Justice of the EU concerning Belgium; Boxus v. Région Wallonne, C-128/09 [2012] and Solvay v. Région Wallonne, C-182/10 [2012]). While such processes are a reasonable way for Governments to deal with permitting large projects of significant national and also transboundary impact (e.g. the Channel Tunnel), the Committee underlines that the process adopting projects by such means still have to be considered within the provisions of the Aarhus Convention, and thus that the Party concerned has to ensure adequate opportunities for public participation. Although the Party concerned refers in the case of the Crossrail Act to a “specific legislative act”, the Committee holds that the process adopting the Crossrail Act by means of a hybrid bill falls within the scope of article 6 of the Aarhus Convention as it serves as a decision to permit a specific activity.
Public participation – public notice (art. 6, para. 2)
57. As a project under article 6, paragraph 1(a), in conjunction with paragraph 20 of the annex, the public participation provisions of article 6 apply. During the hearing, the communicant submitted that all public participation requirements under article 6 were complied with, with the exception of the public notice, under article 6, paragraph 2. Due to the failure of the Party concerned to inform the public in a sufficient manner, the communicant alleges that he was not aware of the ongoing process, including the decisions for demolition of the buildings he was interested in, and missed the opportunity to submit his objections.
58. On the basis of the information received, and taking into account the statement from the communicant that public participation, with the exception of public notice, was fulfilled, the Committee does not examine whether each of the requirements of article 6, paragraphs 3-9, was satisfied.
59. With regard to the public notice, the Committee notes that information about the project and the elements of article 6, paragraph 2, of the Convention were available for the public early on during the permitting procedure, on the Internet (web site of the developer and the Parliament; the press; and the information centers along the project). The number of petitions objecting to the project, including to the demolition of buildings, shows that members of the public were adequately informed. Therefore, the Committee finds that the Party concerned did not fail to comply with article 6, paragraph 2, of the Convention.
Access to review procedures (art. 9, para. 2)
60. Article 9, paragraph 2, of the Convention requires Parties to ensure access to procedures for review of decisions, acts and omissions subject to article 6. This provision addresses standing, as well as the scope of review, that should comprise the substantive and procedural legality of the act. To comply with the Convention, the Party concerned must ensure that within its domestic legal system all criteria required under article 9, paragraph 2, of the Convention, also those extending beyond the EU law and the 1998 Human Rights Act, are met in regard to hybrid bills processes.
61. The Committee examines in particular the scope of the review procedures after the adoption of the Crossrail Act (or any act adopted further to Hybrid Bill procedure authorizing a specific activity). In the case of the Crossrail Act no such challenge was brought before a court of law. Thus, the Committee is not in position to determine whether the legal remedies available under the law of the Party concerned would have enabled members of the public concerned to challenge the Crossrail Act as required under article 9, paragraph 2, of the Convention.”

James Maurici QC appeared for the UK before the Aarhus Compliance Committee.

See http://www.unece.org/env/pp/pubcom.html for a full copy of the draft findings.