The Aarhus Convention Compliance Committee (“the Committee”), the compliance body established under the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Convention”), has, by a preliminary determination (“the Determination”) dated 15 December 2017, found admissible a communication (“the Communication”) alleging that the UK’s European Union (Withdrawal) Bill (“the Bill”) is in breach of the Aarhus Convention.
The Bill sets out a framework for effecting the UK’s withdrawal from the European Union in domestic law, principally through the transfer of the majority of EU law into domestic law. It provides for broad ministerial powers to pass subordinate legislation in connection with this.
The Communication, which was made by Friends of the Earth, alleged a failure to provide an adequate level of public participation in relation to the environmental effects of the Bill (first complaint), and also in relation to future secondary legislation that might be made under the Bill’s law-making powers (second complaint). On this basis, it was suggested that the UK was in breach of Article 8 (and also, as a result, Article 3) of the Aarhus Convention. Article 8 provides as follows:
Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment.
To this end, the following steps should be taken:
(a) Time-frames sufficient for effective participation should be fixed;
(b) Draft rules should be published or otherwise made publicly available; and
(c) The public should be given the opportunity to comment, directly or through representative consultative bodies.
The result of the public participation shall be taken into account as far as possible.
The Communication highlighted that a large proportion of environmental law in the UK was derived from EU law.
The Determination accepted the admissibility of the first complaint. The Committee found the second complaint inadmissible as it considered that it was too early to assess the issue of compliance in relation to future legislation (§6 of the Determination).
The Determination is notable for its failure to address a central point made by the UK government in its comments on admissibility. The eligibility criteria for a communication are set out at §20 of the Annex to the Committee’s Decision I/7 and provide, inter alia, that a communication that is ‘incompatible with the provisions of this decision or with the Convention’ (§20(d)) is inadmissible. The UK argued that, as the Communication related to the legislative functions of the UK government, it fell outside the scope of the Aarhus Convention. Article 8 imposes obligations on a ‘public authority’. The UK noted that Art. 2(2) of the Aarhus Convention provides that the definition of a public authority ‘does not include bodies or institutions acting in a judicial or legislative capacity’. As the Communication related to Parliament’s acting in a legislative capacity, the UK argued that the Communication was inadmissible.
The Determination does not appear to directly address the UK’s argument. The closest the Committee comes to doing so is a suggestion at §8 of the Determination that consideration of the substance of the Communication would be premature at the admissibility stage. This, however, does not appear to square with the plain wording of §20(d); it would be difficult for the Committee to conclude that a communication is incompatible with the Convention without considering its substance. In fact, the Committee has done so repeatedly when considering the §20(d) criterion: for example, in Kazakhstan ACCC/2004/10, the Committee found a communication inadmissible on the basis of §20(d) because it related to substantive environmental issues and not ‘the procedures and obligations regulated by the Aarhus Convention’.
The Committee has, in the past, shown some reluctance to grant a broad meaning to the exception in Article 2(2). It addressed the same issue in its decision in relation to the Crossrail hybrid bill (ACCC/C/2011/61 – “the Crossrail Decision”)), concluding that the passing of the Crossrail bill did fall within the Convention and was not excluded by Article 2(2). However, the reasoning in that decision appears difficult to transpose to a complaint in relation to the Bill. In the Crossrail Decision, the Committee justified its conclusion on the basis that, in passing the Crossrail Bill, Parliament was ‘no longer “acting” in a legislative capacity, but rather as the “public authority” authorizing a project’ and that the decision to pass the Crossrail Bill ‘serves as a decision to permit a specific activity’. Neither points appear applicable to the Bill, where Parliament is clearly acting in a legislative capacity, and in relation to legislation with wide-ranging and broad consequences not limited to a particular project.
The UK government now has until June 2018 to respond further to the Communication.