In last week’s post here, we saw how a very high proportion of environmental legislation in the UK is derived from EU law, and how despite the “Great Repeal Bill” the nature of that legislation will change with Brexit.  In this blog, we will consider some of the constraints which international law would impose on the Government if it wished to water down or repeal some of that legislation.

Such constraints are likely to flow in particular from (i) existing multilateral treaties and (ii) the future arrangements between the UK and the EU.

Existing Multilateral Treaties

Let us take two examples of existing multilateral treaties: the Paris Agreement on Climate Change and the Aarhus Convention.

(a) The Paris Agreement on Climate Change

This treaty entered into force on 4 November 2016 (here). It has now been ratified by 112 out of 197 parties (here). They include the EU which ratified on 5 October Change (here) and the UK which took the same step on 18 November (here) (The Declaration made by the EU and annexed to the Agreement might be read to mean that the EU has full powers to conclude it alone, but the Member States have nonetheless decided to do so as well.)

As in all other fields, the EU-based legislation on climate change will be carried over into UK law by the “Great Repeal Bill”, but the nature of this legislation will then inevitably change (see last week’s post).

If the Government’s current enthusiasm for the project he UK were to wane and it decided to withdraw from this agreement, it could only do so three years from now; and the withdrawal would only take effect one year later.  This is spelt out in Article 28.

(b) The Aarhus Convention

The Convention on Access to Information, Public Participation in Decision-Making and Justice in Environmental Matters (here) was negotiated under the auspices of the UN Economic Commission for Europe in Denmark’s second city in 1998. It came into force in 2001.  The EU and all its Member States, including the UK, have been Parties for many years; the powers of the Member States cover those matters for which the EU is not competent; see generally here. (A detailed analysis of the Convention and its application by the EU can be seen here.)

As is plain from its title, the Convention consists of three “pillars”: access to information (Articles 4 and 5); the participation of the public in the decision-making process (Articles 6 to 8); and access to justice (Article 9).

Amongst the legislative acts adopted by the EU in implementation of the Convention, are the Access to Environmental Information Directive, the  Environmental Impact Assessment (EIA) Directive and the Strategic Environmental Assessment Directive.

Again, the UK legislation implementing these Directives would be covered by the “Great Repeal Bill”.  If the Government then wished to relax or even repeal any of this legislation, it would still have to be abide by the Convention – unless of course it withdrew.

Pursuant to Article 21, the UK could withdraw from this Convention quite easily: the withdrawal would take effect just nineteen days after the Secretary-General of the United Nations receives the letter of withdrawal.

However, this might perhaps cause some diplomatic difficulties: barring the micro-states, all European countries are party to this Convention.  That includes Belarus and Ukraine (though not Russia) and all the EFTA States, including Switzerland. A handful of central Asian states are also Parties (here).

Even if the UK were to take this step, it would not escape all the obligations flowing from the Aarhus Convention.  That follows from at least two other treaties to which the UK is party.

(i) The Espoo Convention  on Environmental Impact Assessment in a Transboundary Context also lays down EIA requirements, albeit of a much weaker nature; and again all European powers are Parties (here). But the UK could withdraw from that Convention as well pursuant to Article 19, although again it might be subject to peer pressure not to do so.

(ii) More importantly, in extreme cases the failure by a State to inform the public of an environmental danger has been held to be a breach of Article 8 of the European Convention on Human Rights; this case is just one example (here).

Earlier this month, the European Court of Human Rights (ECHR) also confirmed that, in certain circumstances, the freedom to receive information under Article 10 of the European Convention includes the right to make a freedom of information request and to receive a satisfactory response: here (Interestingly, the UK intervened in support of Hungary, the defendant State). The UK Government has announced that it has no immediate plans to withdraw from the ECHR.

Possible Models for Future Arrangements between the UK and the EU

Amongst the possible models which have been suggested are the Agreement on the European Economic Area (EEA) and the much discussed Comprehensive Economic and Trade Agreement between Canada on the one hand and the EU and its Member States on the other (CETA) (here), which has been signed but has yet to come into force.   It has even been suggested that the UK might join EFTA and then accede to the EEA in that capacity (here).

(a) The EEA Agreement

The EEA Agreement is the most far-reaching treaty ever concluded by the with all the EFTA countries other than Switzerland (Iceland, Liechtenstein and Norway).  Several posts on this website have already been devoted to the EEA; see for instance here and here.

By virtue of Articles 73 to 75 of the EEA Agreement and Annex XX thereto (here), large swathes of EU environment legislation, including the Access to Environmental Information and EIA Directives, apply in a slightly amended form within the EEA.

(b) CETA

CETA, which has already been the subject of a post by Panos Koutrakos on this website,contains a large number of provisions relating to the environment: Article 1.9 and Chapters Twenty-Two (“Trade and Sustainable Development”) and Twenty-Four (“Trade and Environment”).   Many of these provisions are quite detailed.

This quick glance at the EEA Agreement and CETA shows that, if the UK wishes to retain substantial access to the EU’s single market, it might have to accept a treaty containing rather detailed environmental provisions.

Conclusion

In short, the numerous treaties to which the UK is already party would place certain constraints on the Government if it sought to water down that legislation or to repeal it. Richard Macrory makes the same point when he writes: “a raft of international treaties means that when it comes to formulating environmental laws the UK may find that no country is an island” (here).

In addition, the UK might perhaps have to agree to certain environmental provisions being incorporated into any future agreement with the EU as the price for retaining a high degree of access to the single market – and would certainly have to do so if it wished to accede to the EEA Agreement on the EFTA side.

 

Please also see earlier post “Aspects of environmental regulation as they apply to the delivery of major infrastructure projects”  by Christopher Muttukumaru CB.

Membership of the European Economic Area, along with Norway, Iceland and Liechtenstein, is often discussed as an option – or at least as the template for an option – for the UK after Brexit.  In an interesting recent paper, Michael-James Clifton, chef de cabinet to the President of the EFTA Court (writing in a personal capacity), explains the operation of the EEA and comments on its operation.

He argues that the “EEA provides a workable framework for the UK. There is no ‘ever closer Union’. There would be no judicial oversight by the ECJ once s.3 European Communities Act 1972 is repealed. The UK could join the existing FTAs EFTA States have signed and would have the freedom to make its own FTAs and set its own trade policy as the EEA is not a customs union. This option would keep the UK in the Single Market and would potentially resolve certain difficulties with the devolved administrations”.  He also comments that “The EFTA Court is mature and independent and is less jurisdictionally ‘grasping’ than the ECJ. The purpose of EFTA and the EEA is to further the friendly relations and trade between sovereign member countries. The EFTA Court has characterised its relationship with national supreme courts as being ‘more partner like’.”  Finally, in a concluding section, he argues that the EEA “has proved itself to be a robust, durable and pragmatic instrument of extending the Single Market for more than 20 years. It has no federalist ambition and leaves sovereignty in national hands, and has demonstrated that the two pillar structure works well in Europe. An updated version could be a natural home for the UK post Brexit. Revisions to the EEA are both possible and achievable and would be in the interests of the EU, the current EEA/EFTA States and potentially Switzerland”.

Environmentalists might have good reason to believe that the Government sends mixed signals about its commitment to environmental protection.

For instance, last month, it announced its plan to build a third runway at Heathrow, even though that is thought likely to lend to levels of pollution in the vicinity of the airport exceeding the ceilings laid down in the Air Quality Directive (here).On the other hand, last week, the Government ratified the Paris Agreement on Climate Change (here)(which the EU had ratified on 5 October and which had already come into force on 4 November 2016 throughout the EU and a host of other Parties, here).

Against this background, what might environmental law in England and Wales look like after Brexit day?

In considering this question, it is important to bear in mind that a very high proportion of our environmental legislation is derived from EU law.  As the Government’s Balance of Competences Review (here) put it, “there are now few aspects of the environment within the Member States which are not the subject of EU controls.”

First of all, like all other areas of EU law, the environmental legislation will be covered by the “Great Repeal Bill” (something of a misnomer, since it will be a massive exercise in preserving most EU laws).  But, that will no be easy matter.  For a start, as Michael Dougan has reportedly told The Times (here), “you can’t just take the whole of EU law and plonk it into the UK legal system, because so much of what the EU does is inherently cross-border in nature”.  What is more, a good deal of EU legislation requires or supposes some involvement by the European Commission and/or other EU bodies.  A classic example is Pillar 2 of the Common Agricultural Policy under which farmers receive EU funding to ensure sustainable development (here).

Quite apart from that, as my colleague George Peretz QC has pointed out on this website (here), those EU provisions which are preserved by the “Great Repeal Bill” would have a different character unless they are accompanied by the body of other principles and rights such as the principle of effectiveness (which ensures that adequate remedies for the enforcement of EU law are available in national courts) and the body of fundamental rights incorporated in the Charter of Fundamental Rights of the EU.  Needless to say, there is also the small question of whether the case law of the Court of Justice of the EU would be observed.

But of course the “Great Repeal Bill” is only the first step.  After that, decisions will be taken as to which of the preserved measures to amend or even repeal.  Supposing that the Government were minded to water down or repeal some of the current EU-based environmental legislation, how far could it go?  Just to take one example, what if the Air Quality Directive and/ or the Environmental Impact Assessment Directive (here) were amended so as to make it easier for the third runway at Heathrow to be approved?

Next week, I will show that international law would impose various constraints on the Government’s options, although it would enjoy a certain amount of leeway.

In this post, our former head of chambers, the prominent EU lawyer Sir Jeremy Lever, KCMG QC, considers whether the Supreme Court will have to make a reference to the CJEU in the Miller case and sets out an alternative analysis of the legal issues.

With regard to the potential need for a reference by the UK Supreme Court to the CJEU in the Brexit appeal proceedings in December, I think that the position can be summarised as follows.

In order to uphold the decision of the High Court in the Miller case on the ground argued by Lord Pannick Q.C., the Supreme Court would almost certainly have to make a reference to the CJEU of the question whether a notice given by a Member State under Article 50 of the Treaty on European Union (“TEU”) can be unilaterally withdrawn by the Member State that gave the notice. Lord Pannick’s argument was that service of such a notice was like pulling the trigger of a rifle: the bullet thus released cannot be recalled by the marksman.

The High Court did not need to decide whether the basis of that argument, namely that an Article 50 notice can no more be recalled than a bullet can be, was correct since it was common ground between the parties that an Article 50 notice cannot be unilaterally withdrawn.

However, the established practice of the House of Lords’ Judicial Committee was, and I think that the practice of its successor the Supreme Court must be, that their Lordships will not decide questions of law on the basis of concessions by Counsel.

Whether or not an Article 50 notice can be unilaterally withdrawn is certainly not “acte clair” in the sense of being either obvious or already the subject of a relevant earlier decision by the CJEU. The opinion of respected academic legal scholars that a notice can be unilaterally withdrawn is on record; and Lord Kerr of Kinlochard, who was involved in the drafting of the TEU, has publicly stated that that too is his opinion.

If the question remains relevant to the decision of the Supreme Court it will therefore itself have to find an answer to it and, unlike the High Court, will not be able to proceed simply on the basis that the answer was “common ground” between the parties”. As the UK’s court of final appeal, it will then be obliged, by EU law, to seek the opinion of the CJEU. Indeed as a matter of common sense, only the CJEU could give a definitive ruling on what is a pure question of EU law.

Even apart from the pending litigation, there would be a strong public interest in knowing definitively whether such a notice can be unilaterally withdrawn. First, it cannot be ruled out that a future British Government might wish to withdraw a notice that had been given in March 2017. Secondly, the possibility of unilateral withdrawal of the Article 50 notice is also relevant to foreseeability of the time when Brexit will occur following the service of Article 50 notice which is also of huge relevance to those who would be affected by Brexit. Thirdly, it would significantly affect the dynamics of the negotiations between the UK and the EU27.

However, having regard to everything that would need to be done if a reference to the CJEU were necessary, I myself cannot foresee how, even using the CJEU’s expedited procedure, the CJEU could give judgment on a reference to it before the second quarter of 2017. If that is so, the Supreme Court would then not be able to hand down judgment in the Brexit appeal before,at the earliest, the second quarter of 2017.

Even though it might be of huge importance for the United Kingdom to obtain, before the British Government served notice under Article 50,  a definitive answer to the question of whether the notice could be unilaterally withdrawn, one has to recognise that the consequent delay would be likely to be politically highly controversial.

There is however an alternative basis on which the Supreme Court could uphold the decision of the High Court, being a basis that I believe would not require a reference to the CJEU.

The wording of Article 50 TEU makes it clear (i) that a notice can be served by a Member State under the Article only if the Member State has “decided” to leave the EU and (ii) that the decision in question is to be ascertained by reference to the constitutional rules of the Member State in question.

The European Union Referendum Act cannot, it is thought, be construed as providing that a majority vote in favour of leaving the EU would constitute, or itself authorise, the Government to take, a decision to leave the EU, though, when the Bill was being debated in the House of Commons, the then Foreign Secretary indicated that the Government would take the necessary steps to give effect to, a majority vote in favour of leaving the EU.

As the High Court found in its judgment, if the United Kingdom leaves the EU, British citizens and companies will lose many important legal rights that they currently enjoy, as a matter of UK law, by reason of UK membership of the EU. Some of the rights that would be lost could not, post-Brexit, be secured, even approximately, by UK legislation and, it is thought, none could be perfectly replicated by the UK Parliament post-Brexit. A British Government cannot, without legislative authority, take a decision that would have such an effect. It can decide to seek from Parliament, the necessary legislative authority and can decide to use all the means available to it to pass the necessary legislation through Parliament. But unless and until such legislation has been passed there is no decision by the United Kingdom to leave the EU.

If that analysis were accepted by the Supreme Court, it would not have to refer any question to the CJEU.

An advantage of proceeding on the basis of that analysis would therefore be that the litigation in the Supreme Court could be completed without delay. The corresponding disadvantage would be that, if a notice under Article 50 were in due course then served, it would be served in ignorance of the answer to the highly relevant question of whether such a notice could subsequently be unilaterally withdrawn by the British Government.

The foregoing is intended to cast light on the important constitutional issues raised by the Brexit litigation. As the High Court made clear in its judgment, the analysis of whether an Act of Parliament is required to trigger Article 50 is independent of the merits or demerits of Brexit. It concerns the more fundamental question of what is consistent with the rule of law within the British constitution.

There has been much excitement generated by the possibility that, in order to resolve the Miller case, the Supreme Court might have to make a reference to the Court of Justice of the EU (“ECJ”).

The excitement is partly generated by the fact that the question that it is thought might have to be referred – the question of whether a notification under Article 50 TEU can be withdrawn unilaterally by the Member State concerned – is one with major political significance, since a positive answer would mean that the United Kingdom retained the option, at any time until the day it actually left the EU, of changing its mind and remaining a member on current terms.  But it is also due to the fact that a reference to the ECJ would take time (thereby having significant implications for the Government’s proposed notification timetable): and the idea that the ECJ, a court never popular with politicians hostile to the EU, would seem to have a say in the United Kingdom’s decision to make an Article 50 notification would be, to say the least, controversial in certain quarters.

In a recent piece here, Philip Moser QC rightly pointed out that, although the Divisional Court was prepared to proceed on the basis of an agreement between the parties that Article 50 notification is irrevocable, the Supreme Court is unlikely to be prepared to proceed on the basis of such an agreement (even if it persists, which it appears it may not).  He also explained, in my view entirely correctly, that if the answer to the question in Miller does depend on whether an Article 50 notification is revocable, then the Supreme Court will have no option but to make a reference of the revocability question: though (in my view) the arguments that an Article 50 notification can be revoked are compelling, for reasons set out here  by Professor Paul Craig, the question cannot be regarded as acte clair (i.e. so clear that there is no need to trouble the ECJ).

So the key question is whether the Claimants’ case does depend on the proposition that an Article 50 notification cannot be revoked unilaterally by the United Kingdom.  In my view, however, it does not: the Claimant’s case, as accepted by the Divisional Court, survives even if that proposition is incorrect.

The effect of a notification under Article 50 is that the United Kingdom is set on a path which leads by default to the United Kingdom leaving the EU two years later (with all the immediate effects on domestic law set out by the Divisional Court).  I say “by default” because several events could intervene: the period could be extended by agreement with all other EU States; an Article 50 agreement could provide for a later date; a further Treaty could be agreed between the United Kingdom and the other Member States; or all Member States could agree to the United Kingdom revoking the Article 50 notice (a possibility accepted even by those who argue that it is not unilaterally revocable).  However, none of those events are ones within the control of the United Kingdom: they all involve the agreement of other Member States, which might not be forthcoming.

That makes the “irrevocability” hypothesis an attractive one from the Claimants’ point of view: as soon as Article 50 is triggered, on this hypothesis, all UK citizens’ rights derived from EU membership automatically vanish after 2 years, with nothing the United Kingdom, and in particular the UK Parliament, can do to prevent it without the agreement of other Member States, over which Parliament has no control.

However, though the irrevocability hypothesis is an attractive simplifying assumption from the Claimants’ point of view, it is not in my view a necessary assumption.

That is because the key constitutional principle lying behind the Claimants’ case is the principle that an act of the Royal Prerogative cannot remove statutory rights granted by Parliament: the principle most famously set out in the Case of Proclamations of 1610.  And that principle would apply even if, having notified under Article 50, the United Kingdom were able unilaterally to withdraw that notification.

That that is so can be seen from the following example.  If the Crown purported, by a proclamation given under the Royal Prerogative, to remove a domestic law right granted under the XYZ Act as from March 2019, it is clear that, under the Case of Proclamations, that proclamation would have no legal effect.  But it would make no difference to that analysis if the proclamation had a clause which said something like “unless Parliament passes an Act before March 2019 re-affirming the XYZ Act.”  The point is that, leaving aside cases where Parliament has conferred specific powers on the Crown, the removal of a statutory right requires a positive act by Parliament, namely the passage of an Act of Parliament removing that right.  In short, the Royal Prerogative cannot make Parliamentary inaction have the same effect as an Act of Parliament.

Returning to Article 50, the key point is that, even if the United Kingdom can revoke an Article 50 notification, the effect of a notification under Article 50 is that, unless Parliament acts (for example, by passing an Act of Parliament requiring the notification to be withdrawn), all the rights UK citizens enjoy under the EU treaties vanish two years later (subject only to events depending on the actions of other States).  The fact that Parliament could, on the revocablity hypothesis, intervene to prevent that default consequence arising is not relevant: the principle is that the Royal Prerogative should not be able to remove statutory rights without a positive act by Parliament, namely a specific statutory power or an Act of Parliament.  Parliamentary silence is not enough.

It may be noted that this argument closely resembles an argument accepted by the Divisional Court about so-called “category (i)” rights, namely EU-derived rights that Parliament could re-instate in domestic law if it wished to do so: see §58 of the judgment.  (Examples of category (i) rights include rights derived from EU Regulations – which are not incorporated into domestic statute – such as rights to payments under the Common Agricultural Policy.  They also include rights implemented under the European Communities Act 1972 (“ECA 1972”) and which would need to be re-enacted under a different domestic legal basis once the EU Treaties cease to apply to the United Kingdom, such as consumers’ rights under the Unfair Terms In Consumer Contracts Regulations.)  The Divisional Court said at §64 that:

“As to category (i) rights, we consider that the claimants are correct in their submission that it is the ECA 1972 which is the principal legislation under which these rights are given effect in domestic law of the United Kingdom: and that it is no answer to their case to say that some of them might be preserved under new primary legislation, yet to be enacted, when withdrawal pursuant to Article 50 takes place. The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect.

In other words, the fact that Parliament could re-enact those rights was no answer to the point that the use of the Royal Prerogative to trigger Article 50 and hence bring about their removal was contrary to the principle set out in the Case of Proclamations.  Similarly, in my view, if the Claimants’ case on the extent of that principle is well-founded, it is no answer to it to say that even after Article 50 is triggered Parliament could (if the revocability hypothesis is correct) force a revocation.

My view, therefore, is that the Claimants’ case, as accepted by the Divisional Court, does not depend on the assumption that Article 50 notification is irrevocable: that is no more than a simplifying assumption.  If that is right, the Supreme Court not only does not have to, but cannot, make a reference of that question to the ECJ.  That is because, under Article 267 TFEU, a national court has no power to make a reference of a question of EU law just because it would be generally helpful to know the answer: it can make a reference only if it has to know the answer in order to give judgment.

That said, there would be nothing to stop the Supreme Court from expressing its views on the revocability question: though those views would be what lawyers call “obiter dicta” (i.e. remarks by a court that form no part of its essential reasoning and which do not create a binding precedent), obiter dicta of the Supreme Court always carry weight and could well inform the political debate on the role that Parliament can and should play in the Article 50 process.  But whether the Supreme Court chose to venture into those waters would, if I am right, be entirely a matter for it.

In an earlier blog, I commented on a summary of a talk given by Judge Baudenbacher (President of the EFTA Court) to the Centre for European Law at King’s College London on 13 October. The full text of his speech is now available here.

The following points are worth drawing attention to.

• It is “hard to imagine” that access to the single market will be possible in the absence of a “non-national surveillance and court mechanism”;
• The UK will lose EEA membership on leaving the EU unless it both joins EFTA and becomes a contracting party to the EEA agreement (which would require the agreement of the EEA States plus Switzerland).　 He believes that that would be forthcoming.
• He considers that some EEA politicians have partly overstated the absence of “co-decision” in the making of EU law; in his view they have not made sufficient use of the co-determination rights that they have.
• He suggests that EU leaders should be prepared to contemplate a compromise on free movement of persons.
• He points out that the EEA States do not pay into the EU budget; they have their own organisation and their own projects.　 He also observes that Norway, “as good Christians”, gives more of its oil money away that it needs to under EEA law.
• He observes that, in the EFTA Court, there would be a UK judge sitting on every case.
• The EFTA Court leaves the EEA States more sovereignty: there are no doctrines of direct effect or primacy in EEA law (legal effects occur only when they have written EEA law into their own law); there is no penalty payment for non-compliance; EFTA Court judgments are not formally binding and there is more flexibility; and there is never an obligation on national courts to make a reference.
• He considers that (compared with the European Court of Justice) EFTA Court jurisprudence is more willing to engage with economic argument, more in favour of openness, less paternalist, more in favour of free trial rights, and less tolerant of legal fictions and presumptions: the EFTA court “is already on some sort of a common law track”. That tendency is increased by the fact that the Court works in English (albeit “EFTA English” rather than “real English”).
• The UK cannot have unrealistic expectations.