Brexit bill may have broken international environment law, says UN

The British government may have breached a major “environmental democracy” law by failing to consult the public when drawing up Brexit legislation.

A UN-backed committee has confirmed it is considering a complaint from Friends of the Earth that the government’s EU withdrawal bill breached the Aarhus convention, which requires public consultation on any new environmental law.

Most of the UK’s environmental laws derive from or interact with EU law, and Friends of the Earth (FoE) has raised concerns that the bill gives ministers “unique and wide-ranging powers” to amend or delete EU-derived environmental law without public consultation, if ministers consider it appropriate.

According to Defra, “over 1,100 core pieces of directly applicable EU legislation and national implementing legislation” fall within the department’s remit.

The “polluter pays” principle and the precautionary principle could both be affected, as could the public’s ability to challenge changes to environmental laws.

William Rundle, lawyer for Friends of the Earth, said: “The government said Brexit was about taking back control, yet it has ignored the views of the UK people in taking it forwards. There has been no consultation on what the withdrawal bill could mean for the environment and environmental legal protections, or what is the best way forwards.

“The Aarhus convention requires effective consultation when new laws are being prepared that can significantly affect the environment, such as the EU withdrawal bill. This would have allowed environmental issues to be debated and understood, but also built democratic accountability and public confidence.

“The current approach by government in conducting Brexit fails to do this; they didn’t even try. Nobody thought Brexit would be easy, but the government cannot ignore its legal obligations, or the views of the people.”

According to the Aarhus convention’s three pillars, information relating to environmental legislation must be provided by public authorities “in a timely and transparent manner”, and the public must be allowed to participate in the development of new laws at an early stage of their preparation. The third pillar is public access to justice, should a party violate or fail to adhere to environmental law or the convention’s principles.

The government may have breached the convention in two ways, FoE says: by failing to set out a consistent legal framework to allow public participation in the preparation of new environmental legislation (article 3), and by not giving the public an opportunity to comment on the bill before it was presented to parliament to be made into law (article 8). FoE says the government failed to consult with the public, and by calling a snap election, any possible engagement with the bill’s white paper was prevented.

In a letter to Friends of the Earth, the Aarhus convention compliance committee says: “the committee has, on a preliminary basis, determined the communicant’s allegation concerning the preparation of the draft ‘great repeal bill’ and the alleged lack of a clear, transparent and consistent framework to implement article 8 … to be admissible”.

Michael Mason, associate professor at the London School of Economics, says the government remains legally bound by the Aarhus convention after withdrawal from the EU, and by abolishing laws relating to Aarhus provisions the UK would be in breach of the treaty.

He says: “The UK would not be able to cherry-pick provisions in the convention: the UK is either fully in or would have to pull out from the treaty. To stay in, the UK government will have to retain all EU-derived law implementing Aarhus obligations.

“A withdrawal from the Aarhus convention would be disastrous for UK environmental policy.”

A House of Lords report calls the EU withdrawal bill a “bill of the first order in terms of law-making powers being granted to ministers”. It says “this bill is expected to generate another 800 to 1,000 statutory instruments in the near future.”

The bill does not require that current environmental standards are maintained after Brexit, nor does it contain a general requirement that the public should be consulted on potentially significant changes to environmental legislation. It does not require ministers to replace the existing European commission complaints procedure on breaches of EU-derived environmental law, which is currently available to UK citizens free of charge. The UK government could still include a requirement for public consultation, however.

In February 2017, campaigners won a case against the Ministry of Justice over proposed changes to cost protection orders that could have made legal challenges to government over environmental issues too financially risky to pursue. A UN committee at the time criticised the government for failing to meet its legal obligations on access to justice under the Aarhus convention.

A government spokesperson said: “The purpose of the withdrawal bill is to provide a functioning statute book on the day we leave the EU – it is an essential bill in the national interest. While we can’t comment on proceedings, we believe we have complied with all of the relevant obligations in developing this crucial legislation and remain committed to maintaining the highest environmental standards. We will be submitting our full response in due course.”

The government now has until 5 June to provide its written response to the complaint. The committee will then decide whether the UK government is in breach of its obligations.

Why the lynx effect would be a boon for Scotland | Kevin McKenna

During a difficult year, the lynx provided a welcome fragment of good cheer. It seems the big cat could be making a return to the wilds of Scotland after an absence of several hundred years. There are many things to like about the reintroduction of a Champions League predator to the Scottish countryside, not least of which is that it would greatly inconvenience and outrage farming and agricultural types. Indeed, Scotland’s farmers were so perturbed by reports of the lynx’s return that several of them undertook a study trip to Norway for the purpose of building a case against the lynx.

Unsurprisingly, the Norwegian harvesters warned their Scottish brethren that reintroduction of the lynx would be an “absolute catastrophe” for Scotland’s sheep population. The Norwegians claimed that 20,000 sheep were lost last year to the predations of the lynx and unnamed others. Curiously, they couldn’t produce a specific number of deceased sheep that were the sole responsibility of the lynx.

Any study produced after a farmers’ jolly to Scandinavia ought to be treated with extreme caution. These eternal European subsidy junkies have always represented a compelling reason to dislike the European Union. Yet having lived off the fat of farming subsidies for decades, many of them voted to bring us out of Europe. In the case of foot-and-mouth disease, an epidemic that made many farmers rich with swollen payouts, animal hygiene issues were a factor. There was an official investigation into reports that some farmers had deliberately infected their livestock once they discovered the compensation levels.

Reintroduction of the lynx, as well as other big beasties, would be a boon for Scotland. The Lynx UK Trust believes there are many ecological benefits springing from the cat’s return to the Scottish wild. Among these are helping to control deer populations and protecting the capercaillie, one of Scotland’s most cherished big birds, the welfare of which causes many to fret. The trust also points out that overpopulation of deer in Scotland is damaging forest habitats and restricting woodland regeneration.

There are significant ancillary benefits. Scotland’s mountains contribute greatly to the country being consistently voted the world’s most beautiful. Hardly a year passes without Scotland receiving another garland for the beauty and grandeur of its rural landscapes. These jaggy wildernesses are made for top predators, yet apart from a few golden eagles, some osprey and a few wee peregrines, our big spaces have little else but sheep, cows and goats. Even the few decent raptors we’ve got left are at risk of extinction because landowners want to eradicate them to leave plenty of grouse for Prince Harry and his indolent chums to exterminate.

A Eurasian beaver in Tayside, Scotland.



A Eurasian beaver in Tayside, Scotland. Photograph: Nick Upton/Alamy Stock Photo

You can’t get within yards of a decent mountain without a moving sea of blue, yellow and green tramping all over our hills and glens morning, noon and night. Scotland’s national emblem shouldn’t be a thistle – it should be a rucksack. It would be grand to replace some of this seething, sweating river of humanity disfiguring our beautiful places with a few species of serious hunters and biters.

The potential benefits are eye-watering. First, you’d get David Attenborough and his team up here when he gets round to doing a Green Planet or Jaggy Planet series. That would bring in more proper tourism than a few thousand Munro-botherers. And there’s always the joyous possibility of bear or wolves preying on hill walkers and keeping their numbers down to manageable levels.

Yes, yes, yes – I know tourism and “outdoor activities” bring a “much-needed boost” to our economy. Isn’t it curious how that phrase “much-needed boost to the economy” is deployed when the middle classes want to have a party or stretch their legs? Thus Edinburgh’s Hogmanay gives a “much-needed boost” to the economy; hunting and shooting deliver one, too, as do the writhing and perspiring rucksack and cagoule army. Little scrutiny of the phrase “much-needed boost” ever occurs. I doubt whether Edinburgh’s edgier neighbourhoods, such as Pilton and Wester Hailes, share greatly in the “much-needed boost”.

The same siren voices were raised when the beaver was reintroduced to Scotland in Argyll’s Knapdale Forest. Last month, three more beavers were introduced to the forest seven years after the first ones. The success of their reintroduction has exceeded all expectations. Their construction skills make them expert at habitat management to the benefit of Scotland. Their dam-building can stabilise important wetlands during dry months and create still-water pools that become perfect environments for diverse types of insects, such as dragonflies. They can improve biodiversity by ensuring a variety of native tree species flourish.

Unsurprisingly, as with the lynx, the narrow interests of similar opposition groups coalesced in a familiar pattern around the beaver’s reintroduction. Landowners, rich residents, farmers and anglers all opposed the beasts for the flimsiest reasons: houses and business premises could be at risk of flooding. There could be crop damage and an adverse impact on fish stocks. None of this has happened, nor was it ever likely to. As usual, the over-protected interests of privileged groups were being advanced before the interests of the nation. And as usual, their claims went untested.

Some of these landowners are descended from families who participated in an illegal land grab over several hundred years. Having driven people off their lands to make way for sheep, they now try to justify their continued stewardship of these places by saying they are not fit for human communities and that only they possess the skills and experience to manage them properly. So we won’t treat seriously anything they have to say about land conservation and the mix of species that we permit to thrive on them.

Scotland was a home for many of these species well before greedy humans arrived. Our country was designed principally for them. So let’s bring them all back – the lynxes, wolves and bears. This land is their land.