This post is by Lewis Lloyd of the Institute for Government.
The government has promised to end the direct jurisdiction of the European Court of Justice (ECJ) in the UK after Brexit, renouncing the oversight of the European Commission and the court as part of ‘taking back control’. But it is unclear how far the UK’s domestic governance structures will replicate the robustness of the EU institutions. The Institute for Government’s report, Who’s afraid of the ECJ?, indicates that the environment will be an area where the change is most marked.
The UK’s record
Data provided by the European Commission show that the UK is considered in breach of EU law with respect to the environment more than almost any other area. Furthermore, it is on environmental matters that it is slowest to comply in the wake of Commission warnings, and most likely to end up before the ECJ.
When the Commission thinks a country has failed to meet its obligations under EU law, it starts ‘infringement proceedings’. According to our analysis, the Commission opened 753 infringement cases against the UK between 2003 and 2016. One hundred and nine of these (14 per cent) were about the environment, making it the third most common area of non-compliance.
Yet more strikingly, these cases have proven the most difficult to resolve. A referral to the ECJ is the final stage of the infringement process, for when a country has failed to comply with EU law, despite repeated exhortations from the Commission. Almost half (29 out of 63) of the ECJ’s judgments on cases brought against the UK by the Commission over the 2003-2016 period concerned the environment. As with all areas of EU law, and despite being more successful at the ECJ than most countries, the UK lost the vast majority of these cases.
The role of the complaints procedure
Our research suggests that this does not simply reflect government disregard for the environment. Other member states are similarly, if not more, susceptible to falling foul of their environmental obligations. Between 2010 and 2015, infringement proceedings for member states across the bloc as a whole were more likely to concern the environment than any other area of EU law, indicating that there are cross-cutting forces at play.
The complaints procedure, which allows EU citizens to alert the Commission to breaches of EU law in a member state, may be key. Environmental lawyers pointed out to us that submitting a complaint in the hope that the Commission opens infringement proceedings is free. This makes it a more accessible means of holding governments to account than pursuing a case before domestic courts. The Commission’s emphasis on resolving general issues of member state non-compliance, rather than settling private grievances, is also well suited to environmental concerns. While businesses involved in private interest cases may have the resources and motivation to make use of the domestic court system, civil society organisations looking to bring public interest cases on the environment are likely to see the complaints procedure as a more attractive option.
Why financial penalties are important
Another attraction of the complaints procedure is that infringement proceedings – if the Commission decides to initiate them – are arguably more robust than domestic alternatives. This is particularly on account of the financial penalties, running into the millions of Euros, which the ECJ has had the power to impose on non-compliant member states since the Maastricht Treaty in 1993.
Legal experts suggested to us that the slow pace of compliance with EU environmental law in the UK and beyond may reflect the unusually high cost of implementing many environmental directives. The widespread provision of new infrastructure (water treatment plants, for instance) or the realisation of specific technical standards (such as the level of pollutants in the air) are challenging, expensive tasks that governments will put off for as long as possible. Ultimately, only the threat of a fine is likely to compel a member state to comply.
Evidence given to the House of Lords European Union Committee in 2016 confirmed that the UK government’s environmental policies in recent years have been driven by fear of fines. This would explain why such a high proportion of the UK’s environmental infringement cases are only resolved after an ECJ ruling, at the final stage before the imposition of a financial penalty.
What this means for environmental governance after Brexit
This draws out two elements central to the effective enforcement of environmental law in the UK, that people who want to maintain the impact of EU membership for environmental governance will need to replicate it. The first is some means of lodging a complaint for free, and in the public interest, to an independent supervisory authority concerning any breach of environmental law. The second is the potential for that authority or a related body to impose a fine on the offender, without which costly obligations would likely continue to be avoided.
Existing domestic governance mechanisms, which we would fall back on in the case of ‘no deal’ being agreed between the UK and EU, currently include neither of these things. A free trade agreement with the EU could narrow the post-Brexit ‘governance gap’ if it involved some mechanism for both monitoring compliance with EU environmental law in areas that affect cross-border trade and resolving any ensuing disputes. But the UK government has maintained its red line over ECJ jurisdiction, and it is not clear that alternative arrangements would be as effective at holding the government to account.
Given its apparent dependence on European enforcement mechanisms to maintain standards, the first stage of the government’s commitment to protecting the environment must be to make sure that it will be similarly accountable after Brexit. Michael Gove is already heading in this direction, proposing a new independent watchdog. But a domestic body is unlikely to have such powerful remedies, and domestically created bodies are always vulnerable to abolition by later governments. Eighteen months after the referendum, it feels as though this debate has hardly begun.
[Image: House of Commons Chamber: Speaker’s table by UK Parliament from Flickr Creative Commons]