Who’s afraid of the ECJ? Let’s debate environmental governance

Among the many proposals in Michael Gove’s thoughtful speech on the environment, one received less attention that we think it deserved. It was his invitation to debate how the UK can “design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes”. This creates a welcome opportunity to debate what kind of governance system the UK should have outside the EU.

Leave campaigners triumphed in last year’s referendum by promising to take back control of the UK’s governance. Theresa May played on Brexiteers’ sense of British sovereignty during her conference speech last year, when she promised that we “are not leaving the EU only to return to the jurisdiction of the European Court of Justice. That is not going to happen.”

But when the Lords sought reassurances from Defra regarding future environmental governance arrangements, they hit a brick wall. Ministers told them that judicial oversight by the ECJ was no longer required and that future governments should, in effect, be trusted to regulate themselves, with only light parliamentary oversight. The Lords thought this response was “worryingly complacent”.

An unfrozen moment to debate environmental governance?

The government now accepts that the ECJ may continue to have an indirect role if the UK strikes a transition deal with the EU. Labour too has acknowledged that the UK may decide to remain within the single market, and hence the jurisdiction of the ECJ, through an extended transition period. So, which elements of the EU framework should be retained, and possibly improved upon, and which should be allowed to lapse?

First, some facts. As the EU’s highest legal authority, the ECJ is the final arbiter on the interpretation of EU policies. Since its founding, it has issued well over 700 judgements on environmental matters, the majority initiated by the European Commission against states for incorrectly transposing or applying EU rules. These rulings have helped to sharpen the meaning of important founding principles such as the precautionary principle and polluter pays, they have strengthened citizen rights to a clean environment and increased the transparency and legal force of governance. For example, its 1991 ruling, in the Francovich case, gave citizens the power to sue for compensation if their rights were infringed by the state failing to implement EU laws. Since the Maastricht Treaty, the Court has had the ability to levy fines on non-compliant states, a power which the UK was particularly eager to give it.

Of the 34 ECJ cases brought against the UK on environmental matters, no fewer than 30 have resulted in a judgement wholly or partly against the UK government. More than anything else, these rulings have driven the pace of domestic improvements, in areas such as water and air quality. There are of course some things about the ECJ that could be improved but, according to Ludwig Krämer, one of Europe’s foremost experts on EU environmental law, “in general, [it] has tended to side with the environment”. In other words, the environmental movement has little reason to fear the ECJ.

The ECJ’s continuing influence

The good news is that, red line or no red line, the ECJ is unlikely to slip quietly into obscurity. In fact, there are many ways in which it may continue to influence UK affairs long after Brexit day.

The first relates to the 20 or so environmental enforcement cases that are still wending their way through the EU’s compliance process. In July, the government conceded that some may continue to work their way through to the ECJ after Brexit, though Michael Gove reportedly refused to accept this, perhaps fearing that it may remind voters what they may lose as the UK exits the EU.

Second, as now seems increasingly likely, the UK is expected to seek a transition deal with the EU. If the EU agrees (it may not) it will probably insist that the ECJ continues to have some authority in the UK. A transition deal may only last a few years, but it will provide more time to debate alternative governance systems.

Third, even after Brexit, the ECJ may continue to have an influence as the UK judiciaries seek to interpret the EU laws that have been converted into domestic law. Clause 6 of the Withdrawal Bill states that a national court is not bound to have regard to anything done by the ECJ on or before exit, “but may do so if it considers it appropriate to do so”. There is a lot riding on this for environmental issues because, as the bill is currently drafted (specifically Schedule 1), the case law of the ECJ may be the only means by which the founding principles of EU environmental law are preserved.

Finally, the UK may have to accept a role for the ECJ in any future trade agreement with the EU, as part of an institutional mechanism for settling cross-border disputes. Alternatives will also have to be considered including, perhaps, the EFTA Court or some new hybrid body. The UK has conceded that they all have strengths and weaknesses. Whichever one is selected will have to be dovetailed with the new domestic system of environmental governance.

The need for a considered debate

Modern UK environmental policy has never been in a greater state of flux than it is right now. There is far too much at stake to let politicians close down debate on existing institutions, such as the ECJ, that have been a force for environmental good. Institutions that are resilient and fit for purpose are more likely to emerge from an open and considered debate, perhaps informed by an independent study of all the options.

The politicians that founded the EU did not get everything right, but they had the confidence to establish a powerful, well-resourced system of governance that would stand the test of time – one that was capable of, to borrow another one of Michael Gove’s phrases, genuinely making life “uncomfortable for those… in power” when necessary. As they take back control from the EU, UK politicians will need to face up to this challenge.

About the authors

Prof Andrew Jordan (University of East Anglia) and Dr Viviane Gravey (Queen’s University Belfast) are co-chairs of the Brexit & Environment network. This blog first appeared on the Green Alliance’s blog, Inside Track.