Environment after Brexit: Further Thoughts
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.
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.
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.