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UKELA Andrew Lees Essay Prize: ‘In UK environmental law today, politics and law do not mix. Discuss.’

With reverence to the posited statement, it is important to note that there is an

evident alignment between the claim that ‘politics and law do not mix’ and the doctrine

of the ‘separation of powers’. A constitutional equilibrium exists between the executive,

legislative and judicial bodies in order to prevent the abuse of power which is ‘too great a

temptation to human frailty’.1 The rationale behind the statement is undoubtedly that any

overlap would contravene this doctrine and its ability to prevent political agendas from

undermining the public interest in the environment as ‘politics must bend the knee before

right’.2 In spite of this, it will become apparent that politics and law are not mutually

exclusive in reality and that the two can mix whilst still upholding the doctrine in a more

general capacity. It is due to the progressive shift in the perceived importance of

environmental law – its relationships with political-economist ideology, European Union

(EU) law and domestic public access legislation – that it will be argued politics and law

have mixed to an extent in this area of law specifically.

I: UK Environmental Law and the Political Economy

A relationship between politics and UK environmental law is prevalent in instances

where the importance of environmental protection policy has been negated by the

government in favour of economic growth. This is usually a result of political-economist

agendas which account for the distribution of national income, as well as trade and

production in relation to law and government. In particular, law coalesces with political-

economist policy with regard to regulation. For example, Regulatory Impact Assessments

are becoming increasingly important in regulatory decision-making and consequently in

UK environmental law. Each major new regulatory initiative is now accompanied by one,3

principally under the influence of the Organisation for Economic Development and Co-

operation. Such centrality now signifies that ‘a common way of valuing the environment

is in economic terms, or put it more crudely, in monetary terms.’4

1 J. Locke, Second Treatise of Civil Government (Hackett Publishing Co, Indianapolis 1980) 75.2 I. Kant, H. Reiss (ed), ‘Perceptual Peace: A Philosophical Sketch’ in Kant: Political Writings (2nd edn, CUP, Cambridge 1991) 95, 125.3 HM Government, Impact Assessment Overview (2011)

4 E. Fisher, B. Lange, E. Scotford, Environmental Law: Text, Cases and Materials (OUP, Oxford 2013) 48.

Rolling Word Count: 322


Furthermore, the ‘precautionary principle’ is now active within UK law and dictates

that the state should take action where there is a risk to human health or the

environment, even without evidential certainty as to its existence or extent. The principle

was brought into national law through article 191(2) of the Lisbon Treaty 2009:

‘Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.’

However, this is usually considered after a ‘cost/benefit test’ has been applied in order to

allow the government to prevent a strict application of the principle to state plans.

Following the judgment of R v Secretary of State for Trade and Industry, ex p

Duddridge and Others,5 it is evident that a mere possibility of severe harm occurring is

not adequate enough to validate precautionary action being taken by the government. In

this case, the claim was on behalf of three young children who inhabited an area where

the National Grid Company was installing a new high-voltage cable. It was alleged that

the non-ionising radiation emitted from its presence would enter their homes and schools

so as to potentially provoke the onset of leukaemia. Confusingly, the court ruled that EU

law did not impose an immediate obligation to apply the principle when considering

legislation relating to these two areas. Instead, it will be applied when there is also a

convincing reason to believe that damage would be irreversible if no action is taken

promptly or where there is a strong likelihood that prompt action would be achieved at a

lower cost than if it was to be rectified at a later date.

Essentially, the UK government has determined that it is not a matter of possibility

but plausibility or probability. Deciding for each of these further requirements involves a

significant degree of speculation to be undertaken by the judiciary when it is in the best

interest of the environment and society to take precaution in any case. Even a lesser

measure of probability is of significant value when human health or environmental

protection is at stake. This test, which is economically motivated, suggests that the

government is willing to run the risk in numerous cases where the plan in question is of

5 [1995] Env LR 151.



value; naturally, this value is usually of monetary importance. The mix of political-

economist ideals and law demonstrates that the two can mix in UK environmental law.

A contemporary example of this can be further identified as David Cameron

lobbied against the EU’s attempts to implement legislation against ‘fracking’. Supported

by Poland, the Prime Minister surmised that the existing UK regulations were sufficient to

ensure the environment was protected, and that any preventative measures imposed

would delay investments and increase costs. He wrote to the president of the European

Commission (EC), José Manuel Barroso, purportedly stating that ‘it is essential the EU

minimise the regulatory burdens and costs on industry and domestic bill payers by not

creating uncertainty or introducing new legislation.’6 As a result, the UK did manage to

boycott the legal pressures exerted by the EC in favour of upholding its political-

economist agenda. There is evidently a mix between politics and law in environmental

law today, particularly given that the government can be seen as prioritising the Shale

Gas industry and the state of the UK economy over environmental protection.

II: UK Environmental Law and the European Union

A substantial proportion of environmental legislation in the UK is nonetheless

sourced directly from EU environmental law. Yet ‘there are simply too many instances of

member states failing to transpose or to transpose properly EU directives into their

national legal orders, least of all within the time limits prescribed.’7 From a legal

perspective, the executive body is responsible for commencing ratification of mandatory

directives and is thus accountable for any delay in doing so. In cases where delays are

deliberate, or when lobbying has been unsuccessful, politics and law inevitably mix as

‘law establishes the preconditions for the conduct of politics.’8

Political agendas that can underlie decisions to delay EU directives often stem

6 D. Carrington, ‘UK defeats European bid for fracking regulations’ on theguardian.com dated 14 January 2014

(http://www.theguardian.com/environment/2014/jan/14/uk-defeats-european-bid-fracking-regulations)7 Lord Clinton-Davis, ‘A Personal Perspective’ in Protecting The European Environment: Enforcing EC Environmental Law (Blackstone Press Ltd, London 1996) 2.8 M. Loughlin, Sword & Scales: An Examination of the Relationship Between Law & Politics (4th edn, Hart Publishing, Oxford 2003) 10.



from the reality that the UK is frequently in conflict with them. While this is portrayed as a

clash of interests, namely the best interests of the environment, there are cases where

the delay is a consequence of other policy as exemplified in the ‘fracking’ case. Leading

instances of environmental decisions controversially opposed by the UK government, but

ratified nonetheless, include the temporary suspension of bee pesticides imposed by the

EC.9 The proposed two-year suspension on the three neonicotinoid-based pesticides -

clothianidin, imidacloprid and thiamethoxam - was passed in December 2013 following

several scientific studies which connected the use of the chemicals to harm in bees and a

variety of other wildlife. The ban ultimately succeeded as bees are crucial stakeholders in

the pollination and preservation of the environment. While the UK voted against the ban

allegedly out of fear that farmers would revert to using more dangerous pesticides, the

apt political motive was that the ban would harm food production and chemical

industries.

The EU’s work on environmental protection has frequently been acclaimed for its

success,10 with an example of effective environment protection being the Strategic

Environmental Assessment (SEA) Directive 2001 mandatorily ratified by EU member

states through the Environmental Assessment of Plans and Programmes Regulations

2004.11 The directive ensures that governmental programmes or plans which are likely to

affect the environment require an environmental assessment before commencement.

However there is still an inherent systemic aversion in the UK to following EU law

holistically due to the legal debate on the constitutional doctrine of ‘Parliamentary

sovereignty’. Certain members of both the executive and judicial bodies feel that this

principle has been somewhat supplanted through the UK’s membership in the EU as the

supranational body has the ability to dictate and alter UK law or render it ultra vires. The

former British Foreign Secretary, Douglas Hurd, insisted that the EC ‘was invading every

nook and cranny of British life.’12 Clearly, politics and law mix in UK environmental law

in this instance.

9 See for the text of the Regulation: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:139:0012:0026:EN:PDF10 Clinton-Davis (n 5) 1: ‘its environmental policy has been one of the great success stories of the Union’ 11

See for the text of the Directive: http://www.legislation.gov.uk/uksi/2004/1633/contents/made

http://www.legislation.gov.uk/uksi/2004/1633/contents/made


III: UK Environmental Law and the Aarhus Convention

In wake of the UK’s fervent efforts to maintain legal sovereignty over EU directives

and legislation, it is clear that ‘national authorities want to keep the control of decision-

making and enforcement.’13 This desire is a quintessentially political motivation

integrating itself into the field of law. The UNECE Convention on Access to Information,

Public Participation in Decision-making and Access to Justice in Environmental Matters

1998 (Aarhus Convention)14 is a convergence of politics and law in its very purpose to

enable public access to information, litigation and justice in governmental decisions

regarding the environment.

The convention also illustrates an occasion whereby the UK had been reluctant to

ratify immediately. Although eventually ratifying the convention after two years, the

European Court of Justice held in the recent 2014 decision of European Commission v

United Kingdom of Great Britain and Northern Ireland (EC v UK)15 that the country had not

been enforcing the directive effectively. The claim had been brought in 2005 by a

coalition of Non-governmental Organisations to the EC which alleged that individuals and

civil society groups were still unable to lodge cases in the UK due to the extortionate

costs incurred, and specifically those which could be incurred consequent of the ‘loser

pays rule’. The Attorney General claimed that the UK was in breach of its convention

obligations in 2013, with this being then upheld by the EC. The Aarhus Convention should

have limited an unsuccessful claimant’s adverse costs to £5,000 for individuals and

£10,000 for groups if effectively ratified. Moreover it also has a cross-cap of £35,000 for

the amount a successful claimant can claim from a public body.

Protective Costs Orders may be granted in cases where the issue is of general

public importance, the public interest requires this resolution, there is no private interest

12 Clinton-Davis (n 5) 3.

Rolling Word Count: 136913 R. Marcrory (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Europa Law Publishing, Groningen 2006) 4.14 See for the text of the Convention: http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf15 Case C-530/11.



in the outcome, and/or there is a risk that the applicant will discontinue proceedings.

Even so, these are subject to the court deciding in its discretion whether it is fair or just to

make the order in light of these considerations. As a result, the UK was obliged to amend

the Civil Procedure Rules 1998 (CPR)16 to ensure that Judicial Review was not

‘prohibitively expensive’ as dictated by the convention. Legally the convention had been

in force, signifying that other reasons must have existed as to why it was not enforced.

Politics and law have mixed as it was the executive which was accountable for failing to

uphold the convention.

IV: UK Environmental Law and Domestic Public Access Legislation

In a solely domestic context, the coalition government of 2010 is responsible for

politicising the Judicial Review procedure of the Senior Courts Act 1981 (SCA),17

previously the Supreme Court Act, and as affirmed in the CPR, by amending it in order to

counter-intuitively inhibit public access. Judicial Review is the principle, sometimes only,

and often the most efficient procedure available to members of the public seeking to

bring claims in the UK. Given ‘access to justice is an essential instrument in a democratic

society’18, it therefore follows that citizens should have the ability to seek Judicial Review

of governmental decisions which affect themselves and their environment.

While the Aarhus Convention aimed to further widen its availability by reducing

costs, it remains the case that one of the procedural obstacles to this form of

environmental litigation is the requirement of ‘standing’. The test is as lay out in s31(3) of

the SCA which states that ‘no application for Judicial Review shall be made unless the

leave of the High Court has been obtained’ and the applicant has ‘sufficient interest’. In

the case of R v Inspectorate of Pollution and another, ex p Greenpeace Ltd (No 2)19,

Greenpeace was granted standing to bring action against an expansion of nuclear

16 See for the text of the Rules: http://www.legislation.gov.uk/uksi/1998/3132/contents/made17 See for the text of the Act: http://www.legislation.gov.uk/ukpga/1981/54/contents18 B. Dette, citing L. Kramer in ‘Access to Justice in Environmental Matters; A Fundamental Democratic Right’ in Europe and the Environment: Legal Essays in Honour of Ludwig Kramer (Europa Law Publishing, Groningen 2004) 4.19

[1994] 4 All ER 329.



reprocessing in Sellerfield in absentia of any alternative interest defender. All the same,

the ‘sufficient interest’ test has otherwise been difficult to determine in practice20 which

actively undermines the idea that ‘the environment cannot defend itself and needs an

interest defender in order to challenge impairments of environmental policy in court.’21

While the UK may have amended the CPR in 2013 to reduce cost liability following

the EC v UK case, further limitations on procedural public access had been implemented

in the years prior through amendments to the availability of Judicial Review laid out in

s54. For example, s54.5(5) within s54.5 on time limits for filing claims now dictates that

planning permission decisions can be challenged no later than 6 weeks after they were

made, while s54.5(6) requires public procurement contracts of 80,000 euros or more to

be made within 30 days. What is more relevant in environmental law, perhaps, is the

2012 amendment to s54.12(7) which now disallows claimants from requesting that the

court’s decision to reject their claim be reconsidered where the application was ‘totally

without merit’. The test is subjective, discretionary, and a prevalent example of strategic

policy mixing with law as the executive has conferred this judicial power.

Moreover, the government claimed that such recent restrictions on Judicial Review

were implemented in order to promote systematic efficiency by reducing the surplus of

claims and weaning out those with little merit. In reality, the number of Judicial Review

cases that arise in environmental law is negligible when compared to the overall total of

administrative proceedings. Furthermore, cases are over-proportionally successful when

concerned with environmental matters than any other area of litigation, and thereby

contribute to an improved enforcement of environmental protection.22 It is questionable

why an effective procedural protection such as Judicial Review should be so diminished in

order to facilitate political appeasement, if there was not a mix between law and politics.

V: Closing Comments

In these instances, it is undeniable that politics and law mix in UK environmental 20 For example, see R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990] 1 All ER 754.21 Above n 7.

22 Dette (n 11) 12.



law today. Afterall, ‘man is by nature a political animal.’23 Likewise, these political

agendas sometimes converge. The government’s unceasing efforts to restrict access to

Judicial Review and its political-economist motivations bear present in the Ministry of

Justice announcement that the measures to limit access satiated claims that Judicial

Review can act as a ‘brake on economic growth’. Somewhat hypocritically, the body

proceeded to suggest the procedure was abused as a ‘tactical device to delay’

government programmes much as has been the case with EU ratification.

While there is an evident mix, it would be invalid to suggest that politics subverts

or wholly undermines environmental law. Rather, government policy and politics impact

on legal practice. It has been convincingly argued that that the two inevitably mix in UK

law as a whole, as often ‘legal discourse must be rooted in political practice’.24 In respect

of UK environmental law, a further controversial question may be whether the two should

mix in this sector.

Bibliography

23 See Aristotle, T. Sanders (ed), The Politics (Penguin, Harmondsworth 1981).24 Loughlin (n 8) 9.

Total Word Count: 2499


Books

D. Anton, D. Shelton, Environmental Protection and Human Rights (CUP, New York 2011)

Aristotle, T. Sanders (ed), The Politics (Penguin, Harmondsworth 1981)

R. Churchill (ed) et al, International Law and Global Climate Change (Graham & Trotman, London 1991)

Lord Clinton-Davis, ‘A Personal Perspective’ in Protecting The European Environment: Enforcing EC Environmental Law (Blackstone Press Ltd, London 1996)A. Cohler (ed) et al, Montesquieu: The Spirit of the Laws (CUP, Cambridge 1989)

S. Coyle, K. Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Hart Publishing, Oregon 2004)

B. Dette, ‘Access to Justice in Environmental Matters; A Fundamental Democratic Right’ in Europe and the Environment: Legal Essays in Honour of Ludwig Kramer (Europa Law Publishing, Groningen 2004)

E. Fisher, B. Lange, E. Scotford, Environmental Law: Text, Cases and Materials (OUP, Oxford 2013)

I. Kant, H. Reiss (ed), ‘Perceptual Peace: A Philosophical Sketch’ in Kant: Political Writings (2nd edn, CUP, Cambridge 1991)

M. Loughlin, Sword & Scales: An Examination of the Relationship Between Law & Politics (4th edn, Hart Publishing, Oxford 2003)

R. Marcrory (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Europa Law Publishing, Groningen 2006)

J. Razzaque, Environmental Governance in Europe and Asia (Routledge, Oxford 2013)

S. Wolf, N. Stanley, Wolf and Stanley on Environmental Law (6th edn, Routledge, Oxford 2014)

Legislation

Senior Courts Act 1981

Civil Procedure Rules 1998

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998

Environmental Assessment of Plans and Programmes Regulations 2004

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