Richard Macrory

1. Institutional Change

Two major constitutional changes, devolution and the introduction of the Human Rights Act came into effect in 1999/2000, will have long-term profound impact on the future governance of the United Kingdom. Neither are directly concerned with the environment as such, but will significantly affect the context in which environmental law and policy is developed in the future.

(a) Devolution

Legislation introducing devolved powers for Scotland, Wales, and Northern Ireland came into force in 1999. The Scottish Parliament has the most devolved powers, including that of making primary legislation, with the legislation assuming that power is devolved unless reserved to the UK Parliament. With the exception of international and EC matters, the environment is devolved but the legislation contains complex Schedules reserved numerous detail matters (such as energy) which have environmental implications. Boundary disputes can eventually be determined by the courts, but Central Government and the devolved administrations have developed Memoranda of Understandings which are designed to avoid disputes as far as possible. Although there is no litigation yet on the issue, the environment is recognized as one of the more complex areas. Particular problems are likely to arise over the allocation of targets (eg climate change reductions, waste landfill reductions).

(b) Human Rights Act 1999

The Human Rights Act, incorporating for the first time the European Convention into national law, entered into force in October 2000. Decisions of official bodies (including government departments, the Environment Agency, and local government) which fail to comply with the Convention obligations can be challenged in the courts, and such bodies are having to consider their existing administrative procedures with care. Regulations can similar be challenged and declared void by the Courts. The Courts do not have the power to declare void primary legislation which fails to comply, but instead can issue a Declaration of Incompatibility, sending a powerful signal to Government and Parliament to amend the law.

The Convention does not, of course, contain explicit environmental rights, but there are many aspects of long-established practice which may be vulnerable, even though judges have been advised to be wary of extravagant claims. Despite the Government�s hopes that the new Act would not lead to massive litigation, a whole range of challenges are in the pipe-line. The Holding and Barnes case in December this year (noted below) was the first Declaration of Incompatibility made, and concerns the role of Central Government in land-use permitting..

(c) Environmental Courts

A government funded study of specialized environmental courts and tribunals, published in early 2000, advocated the need for substantial change in current structures for handling both appeals in planning and environmental cases, and judicial review of decisions. The report carried out by Professor Malcolm Grant put forward a number of different options, and suggested that the current system as unlikely to be consistent with the Human Rights Act (initially confirmed by a High Court decision in December - see below) and the Aarhaus Convention.

Although the Government is stalling on substantial change and the case for a specialized environmental court as such is not wholly convincing, a more independent system of tribunals (rather than inspectors reporting to government) is likely to emerge.

2. Politics and Policy : Transport, Energy and Climate Change

High taxes on transport fuel has been an element of both the previous and current Government�s climate change policy. In common with many countries, increasing rises in the real cost of petrol led to public protests and shortages, especially farmers and hauliers but interestingly the Government hardly mentioned the environmental dimension in its response � instead it argued that tax revenue was needed for hospitals and schools etc. Environmental NGOs were equally reticent. I was on the radio and when I argued that the real costs of motoring had not increased over the last 20 years and that it was environmentally damaging to drop fuel prices I was told I was a brave man!

The Government did not, however, make immediate concessions; its proposals in the Autumn appeared to suggest reductions of fuel duty only for environmentally friendly fuels, but closer examination indicates an element of political spin, and that 3p reductions on fuel duty were in fact being proposed.

Conversely, when major floods occurred in the Autumn, the environmental policy dimensions were given much higher profile. The possible climate change implications were emphasized in the press, and Parliament and other bodies emphasized the need to prevent new building in flood plains (or pass the cost of flood prevention onto developers), to improve drainage techniques, and prevent damaging agricultural practices.

In the summer the Royal Commission on Environmental Pollution published a major report on Energy and environment (22nd Report Energy - The Changing Climate). While commending the British Government for pursuing a policy which went considerably beyond Kyoto targets, it noted that the major achievements to date had been achieved by the restructuring of the energy industry and the decline of coal, and that targets of the order of a 60 % reduction of C02 by 2050 would be needed to avoid or delay the worst effects of climate change. Rather than advocating particular energy forms, it developed a range of scenarios from one involving nuclear or fossil fuel with sequestration to one involving massive energy conservation and alternative energy sources. All would imply considerable environmental impacts or life style changes; non-nuclear options would require a restructuring of conventional grid systems. The Report attracted headline news in the TV and newspapers, but depressing how quickly during the subsequent fuel crisis the environment side was largely ignored for several months.

Despite these events, it remains the case that the environment is not seen as high on the political agenda (not a vote winner) particularly in the Prime Minister�s Office, the Treasury, and departments such as Trade and Industry. There are powerful advocates in the Department of Transport, Environment and the Regions. The Prime Minister made his first major speech on the environment in October, which was a not altogether convincing account of how the environment can be profitable for industry.

(d) Phillips Report on BSE

The report of a major inquiry (chaired by a senior judge) into the BSE (�mad cow�) crisis was published in the summer. Much of the report is concerned with the details of BSE and government responses, but it also contains recommendations and conclusions which have wider significance for contemporary environmental regulations, especially in areas of scientific uncertainty. One result of the BSE saga has been a profound public unease and distrust of the ability of government to regulate in areas of uncertainty, and strongly influenced the public reaction to the GMO debate.

*The report notes the extensive use of scientific advisory committees, but is critical of the relationship between government and such committees. It recommends that terms of references and areas of advice must be defined as clearly as possible, and that where a policy decisions involves balancing of considerations outside the expertise of committees, the committee should not normally advise on which option to adopt, but should set out a range of options.

* The report noted criticized the Government�s dominant fear of provoking an irrational public scare in its approach to communication. "The Government must resist the temptation of attempting to have all the answers in a situation of uncertainty ... If doubts are openly expressed and publicly explored, the public are capable of responding rationally and are more likely to accept reassurance and advice if and when it comes."

* The report reviews various legal powers to impose bans and expressed concern that there were doubts on the legality to take precautionary measures in a situation where the existence of the hazard is uncertain. Where measures had been adopted by the European Commission (under Directives 89/662 and 90/445) there were doubts as to whether individual Member States could adopt further unilateral measures.

2. Significant Legal Cases

(a) Remedies where Government in Breach of EIA Directive

Berkeley v Secretary of State for the Environment

(July 2000, House of Lords)

This case concerned a land use planning permission granted by the Secretary of State for a major urban redevelopment site in London. The decision was challenged in the courts by local residents on the grounds that the project was an Annex II project under the EIA Directive, and the Secretary of State had never considered whether the formal assessment were required. The Secretary of State admitted he had not done so, but argued that it would have made no difference - there had been a public inquiry and all the relevant environmental information was available, though in different reports. The 1995 ECJ decision in Commission v Germany was heavily relied upon.

Under UK law, even where a decision is found to be legally flawed, the courts retain a discretion as to whether to actually quash the decision. Both the High Court and the Court of Appeal decided not to quash the decision on the grounds that the application of the EIA procedures would have made no difference. In a much tougher approach , the House of Lords reversed that decision. They did not go quite as far as saying that where breach of EC was involved, a decision must always be quashed but almost : "In the Community context unless the violation is so negligible as to be truly de minimis and the prescribed procedure has in allessentials been followed the discretion (if any exists) is narrower still." Another Law Lord emphasized the public consultation aspects of the Directive - the environmental statement should constitute a single and accessible document - a "paper chase" among a range of reports was not the equivalent. The decision is an important signal that breaches of EC required procedures must be treated seriously by the courts.

(b) Humans Rights and Planning Procedures - Art 6 European Convention

R v Secretary of State ex parte Holding and Barnes

(Divisional Court 13 December 2000).

The full judgment in this case has not yet been published, but has major implications of the role of Government departments in deciding land use planning and perhaps other environmental decisions. Under the Human Rights Act which came into force in October 2000, courts do not have a power to quash Acts of Parliament which are incompatible with the European Convention, but may make a Declaration to that effect (there is then great political pressure on Government to change the law). This decision is the first such Declaration.

Under UK planning law (and in many other areas of environmental licencing) most decisions are taken by local authorities with a right of appeal by the developer merits to the Secretary of State (central government). Developers and third parties can challenge decisions of local authorities and the Secretary before the courts on points of law only rather than substance. In most cases of appeal to the Secretary of State the Government delegates the decision-making to an independent Inspector, but he retains a discretion to decide decisions of political and policy importance.

In this case it was argued that the procedures were incompatible with the Art. 6 requirements of an "independent and impartial tribunal" in the determination of civil rights. The Secretary of State accepted that he was not impartial, and the Court held that under the Convention he could not be both policy maker and decision taker. But it was argued that the procedures were saved by the right of appeal to a court of law. The High Court disagreed. The powers of the court were limited to points of law only, and the decisions of the Secretary of State were not therefore subject to control by a body with full jurisdiction.

The court appear to have accepted that where decisions are delegated to an independent inspectorate the procedures are saved (though some doubt this as the inspectorate is not a wholly independent body). The decision will be appealed. My own view is that the Secretary will not win the appeal, and that the decision will hasten the establishment of statutorily independent tribunals to determine planning and other environment decisions.

(c) Sentencing for Environmental Crimes

Sea Empress appeal (Court of Appeal March 2000)

Legislation establishing criminal offenses generally prescribes a wide range of possible sentences (fines or imprisonment) leaving courts with the discretion to determine the amount. In lower magistrates courts, for example, maximum fines are generally £20,000, while the higher criminal courts have no upper limit. There is a general concern that magistrates in particular do not treat environment crimes with sufficient seriousness.

In certain areas such a traffic offenses, the court bodies publish suggested tariffs, and a newly establishing Sentencing Advisory Committee performs a similar task. Occasionally the Court of Appeal will issue general guidelines. In March 2000 the Sentencing Advisory Committee issues general advice in relation to environmental offenses, but it was expressed in very general terms, and tended to state the obvious.

At the same time a major case reached the Court of Appeal where the defendant had appealed against the size of the fine. This was a major oil pollution incident where in January 1999 a Crown Court has imposed a £4 million fine on a Harbour Authority over its supervision of salvage operations which has lead to oil discharges from a wrecked tanker. No negligence was involved.

The Court of Appeal held the fine to high and cut it to £750,000. It felt the Crown Court has not taken fully account of the plea of guilty by the Port Authority, the lack of negligence, and the state of its finances. It drew attention to guidelines it has issued the previous year concerning Health and Safety offenses, though warned of drawing too close an analogy with environmental offenses.

There has been mixed reaction to the Court of Appeal�s decision. Friends of the Earth and the Environment Agency reacted critically, but others feel the Court of Appeal�s decision was correct in the circumstances, and still contains strong messages which are likely to increase the levels of fines especially where large companies are involved. The Court noted for instance that fines should be sufficiently large to bring hoe to both shareholders and managers the purposes of the law.

(d) Definition of Waste, Scrap Metal and Packaging Waste Directive

R v Environment Agency ex parte Mayer Parry (High Court Sept 2000)

This is a interesting case which has been referred to the European Court of Justice. It concerns the familiar problem - at what point does scrap metal (or other recycled material) cease to be �waste� in law. In 1998 the High Court, following ECJ decisions, has held that once scrap metal required no further processing but was capable of being used directly as a fuel or for melting as a raw material it was not longer �waste� under general waste management licencing controls.

In this case the same major scrap metal company which has won the first case applied to the Agency for accreditation under the Environment Agency�s scheme fort packaging waste reprocessors, impel, the EC Packaging Directive. Mayer Parry argued that its packaging waste which had been converted into raw material was not recycled and they should obtain credits (which have financial worth).

The Environment Agency argued that the reprocessor should be the company that receives the scrap metal and turns it into the final product (eg British Steel). In the High Court, the Environment Agency and the Government. though both opposing Mayer Parry) had different views of the law. The Agency, although it originally accepted the first High Court decision, now argued that it has taken too generous a view of the definition of waste under the Waste Directive. The Government, however, accepted that decision ut argued that the definition of waste under the Packaging Directive was narrower than that under the Framework Directive. The High Court has referred the matter for a ruling by the ECJ.

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