3- Ongoing Communications Against the UK

As readers may know, members of the public are able to send communications to the Aarhus Convention Compliance Committee (“ACCC”), if they consider that the UK is in breach of its obligations under the Convention. Each communication and document submitted is posted online, and the full list can be found here. In this post, we take a very brief look at the complaints which are currently open against the UK, and the stage these complaints are at.

ACCC/C/2017/150  - EU Withdrawal Bill – awaiting decision on the merits

Friends of the Earth (“FoE”) submitted a communication in October 2017 alleging that the UK had failed to comply with Articles 3(1) (obligation to establish a clear, transparent and consistent framework to implement the Convention) and 8 (public participation during the preparation of executive regulations and other generally applicable legally binding normative instruments) arising from the European Union (Withdrawal) Bill 2017. The complaint, in outline, is that the UK had an obligation to consult on the text of the Bill, while it was being prepared and before it was submitted to Parliament in 2017. Both the UK and FoE attended the ACCC’s 76th meeting in Geneva in September 2022, to answer questions from the Committee. We now await the outcome of their decision.

ACCC/C/2017/156 – Wednesbury– awaiting decision on the merits

FoE, FoE Scotland, RSPB and Leigh Day submitted a communication in December 2017 alleging that the Wednesbury standard of review does not satisfy the UK’s obligations under Articles 3(1) and 9(2), (3) and (4) (Access to Justice) of the Convention. The ACCC heard oral representations from the UK and communicants at their 65^th meeting in November 2019, and has received various comments since that time. A decision is awaited.

ACCC/C/2022/194 – Free Trade Agreements– admissible, awaiting UK submissions

A coalition of NGOs including WWF UK and Greenpeace UK have brought a communication alleging that the UK is in non-compliance with Articles 3(1) and 8 in relation to the public participation which is currently undertaken during its negotiation of any free trade agreements with other countries. The ACCC considered the admissibility of the complaint at its 76^th meeting in September 2022, and has confirmed that it does consider the complaint admissible. The UK now has until 12 May 2023 to provide any response.

ACCC/C/2022/196 – Planning Appeal Rights – admissible, awaiting UK submissions

Various communicants including the RSPB and FoE Scotland have brought a communication challenging a disparity in the appeal rights of planning decisions in Scotland. Paralleling the regime in England and Wales, in Scotland unsuccessful applicants for planning permission can appeal to the Scottish Ministers for a full redetermination of their appeal on the merits, while unsuccessful objectors or other members of the public are limited statutory and judicial review. This is argued to be a breach of Articles 9(2), (3) and (4). Held admissible.

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.