Barristers call for protection of environmental standards

Brexit could give future governments ‘too much leeway’ over environmental standards, legal experts have claimed.

The warning has come from the Bar Council — the professional body representing barristers in England and Wales.

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The Council has claimed that it is unclear whether the government has plans on how the UK’s environmental obligations will be enforced once it leaves the jurisdiction of the Commission and the Court of Justice of the European Union (CJEU).

In its ‘Brexit Papers’, an analysis of legal issues raised by leaving the European Union, the Council has called for the UK to create an ‘effective, independent’ enforcement mechanism to replace the Commission and CJEU, underpinned by judicial oversight and sanctions.

Chair of the Bar Council Brexit Working Group, Hugh Mercer QC, said: “International laws that protect the environment only work when there is a body to enforce them. In most legal cases, a claim is made by a living person or a business, but with environmental law there is often no identifiable party with a justiciable interest.

“The Commission and the CJEU have done the job of compelling the government to follow its own legal obligations, but current plans will see their jurisdiction and authority in the UK come to an end. The big question is, who will enforce standards? The risk is that there will be no independent and effective body to ensure that the Government follows the rules.”

Challenge

Notably a ruling by the CJEU in November 2014 paved the way for a legal challenge against the UK government in the High Court, after it stated that it was up to UK national courts to decide what action was necessary to take on ensuring compliance with the EU’s Ambient Air Quality Directive (see airqualitynews.com story).

The case against the government has continued, and is set to return to the High Court on Wednesday, where a third appeal by the campaign group ClientEarth will be heard over latest proposals to tackle air pollution in towns and cities (see airqualitynews.com story).

Mr Mercer, added: “UK courts will have some power to hold the government to account, but only to UK law. They will be powerless to hold the UK Government to account over international obligations that are the backbone of environmental standards and are critical to agreements on trade and attracting inward investment.

“Unfortunately, the UK does not have a great reputation when it comes to following environmental law. Despite the UK’s agreement to the high international standards, successive governments have been slow or reluctant to implement properly or correctly to apply key European measures such as for example air quality standards.

Obligations

He also claimed that the UK “has a track record for trying to use cost and economic reasons to swerve its obligations under environmental law,” adding: “The CJEU has set it straight on more than one occasion, such as when the government tried to defend the unlawful discharge of untreated sewage by claiming the costs of improvements were too high.

“If not by the Commission or the CJEU, the government needs to spell out how it will be held to account for its international environmental obligations.”