UN findings slam UK over failure to consult public on new environment laws

The UK government may soon be obligated to ensure that the public is always properly involved in the design of any new laws that could significantly impact on the environment, following the publication of much-anticipated landmark international legal findings last week. 

A draft assessment, published by the UN-backed Compliance Committee of the Aarhus Convention – an international environmental justice treaty signed by 47 parties – concluded that the UK was in breach of the Convention over the lack of public participation when Brexit legislation was being drawn up. The Aarhus Convention guarantees the public three key environmental rights - access to information, access to justice, and participation in environmental decision-making.   

First filed in 2017, the case was brought by the environmental justice organisation Friends of the Earth. In its complaint, the group argued that the UK breached Articles 8 and 3 of the Convention when introducing new legislation to parliament that formalised the UK’s exit from the European Union – otherwise known as the EU Withdrawal Bill (now Act). This group’s complaint was the first of its kind challenging the UK under Article 8 of the Convention. 

The articles stipulate that there should be meaningful public engagement when new laws are being drafted that could significantly impact on the environment – with minimum standards to adhere to this – and that signatories to the treaty must introduce a “clear, transparent and consistent” framework to ensure effective participation in all circumstances. The committee found in the environmental group’s favour that these were not met when the Withdrawal Bill was being developed by Theresa May’s government, and that the required system was not in place.  

In its damning assessment, the committee found that: 

• There was no evidence that time-frames sufficient for effective public participation were implemented
• There was no opportunity for the public to feed back on the proposed legislation and that the draft Bill was not made publicly available for scrutiny
• There was no evidence that the UK took on board any such feedback given the total lack of public engagement 

These are all minimum requirements of the Convention, and the UK did not meet any of them. 

The committee also stated that “a clear, transparent and consistent framework” for implementing these requirements was not enacted. 

In its counter-arguments, the UK government said that Friends of the Earth’s case was out of the Convention’s scope, manifestly unreasonable and an abuse of process. These arguments, put forward by the Department for Environment, Farming and Rural Affairs under the previous Conservative government and notably aggressive in their nature, were rejected by the committee. 

If approved by the treaty’s member states at their next meeting this November, which the environmental group deems highly likely, the Compliance Committee’s findings will become legally binding under international law. That would mean that legislative change, or other appropriate measures, will be required to ensure that future laws which could significantly affect the environment are always developed with proper public input. Failure to implement a “clear, transparent and consistent framework” would place the UK in breach of international law.

However, the UK government can choose to accept and act on the findings immediately. Friends of the Earth is calling on it to take immediate steps to bring itself into compliance with the Aarhus Convention.  

This groundbreaking win could have important ramifications for other pending cases before the UN committee, including one brought by a coalition of organisations including WWF, Soil Association and Tenant Farmers’ Association. Their case was brought against the UK government over the lack of public participation related to post-Brexit trade deals. 

Will Rundle, head of legal at Friends of the Earth, said: 

“This important victory for people and the environment has been years in the making. Until now, it’s been entirely up to the government of the day how transparent or accountable it chooses to be when drafting environmental legislation, to the detriment of our precious environment.

"Having repeatedly affirmed its commitment to the Aarhus Convention, the UK must now put its money where its mouth is by fully incorporating the Convention’s requirements into UK law at the earliest opportunity.

“Good environmental governance is more than just hitting conservation targets, it’s about building consensus and bringing society together in how we protect the natural world we all depend on. For politicians to build a strong, democratic society that puts its trust in government to turn around the ecological crises we face, then we must see our leaders embracing a more transparent, inclusive and considered approach to decision-making on laws that could affect the environment.”  

ENDS

For more information and interviews contact the Friends of the Earth press office on 020 7566 1649 or email [email protected]. 

Notes to editors: 

1. The full draft findings are available on the UN European Commission for Europe (UNECE) website – please see the latest entry. 

2. The Aarhus Convention can be viewed on the UNECE website:

   Article 3 (1) says: “Each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention.”

   Article 8 says: “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.”

   There is also an ‘Aarhus Implementation Guide’ which further explains the scope and effect of Article 8. Please see pages 181 – 185.

   All of Friends of the Earth’s case documents, including our original submission and the UK government’s response, are available on the UN’s website. 

3. The government has maintained that it is committed to the Aarhus Convention, as evidenced in its recent call for evidence on Access to Justice in relation to the Aarhus Convention.
4. The in-house team acting for Friends of the Earth on this case included Will Rundle, Head of Legal and Katie de Kauwe, Senior Lawyer. Our external barristers were David Wolfe KC and Toby Fisher, both of Matrix Chambers. 
   Friends of the Earth will be attending the Meeting of the Parties at the UN in Geneva in November, when the member states to the Aarhus Convention will vote on whether to adopt the Committee’s findings.
5. Historically, the Committee’s findings have generally been adopted at each Meeting of the Parties by unanimous consent.
6. Friends of the Earth England, Wales and Northern Ireland has another pending case before the Aarhus Compliance Committee in relation to access to environmental justice. The complaint alleges a failure by the UK to ensure the courts undertake an adequate review of the proportionality of decision-making in environmental judicial review cases. This case was brought jointly with RSPB, Friends of the Earth Scotland and the law firm Leigh Day. More information can be viewed on the UNECE website.