FOE Complaint That The Brexit Bill May Breach The Aarhus Convention Is Admissible

By Ewa Krzepisz

Last month, the UN-backed Aarhus Convention Compliance Committee (‘the Committee’) found admissiblea complaint that the government’s EU Withdrawal Bill (also known as the “Brexit Bill”) may not be compliant withthe Aarhus Convention.

The Brexit Bill contains powers to repeal the European Communities Act 1972 to end ‘the supremacy of EU law in the UK’, toadopt current EU law into UK law at the date of Brexitand creates powers capable of making secondary legislation to ensure thataim is achieved. The vast majority of the UK’s current environmental laws and policies are derived from EU laws.

Friends of the Earth, who brought the complaint, contend that the Brexit Bill breaches Article 8 and 3 of the Aarhus Convention in two main ways. They allege that the failure to formally consult the public in the preparation of the Brexit Bill, and the failure to provide a consistent legal framework in the Brexit Bill to allow public participation in the preparation of subsequent legislation, both deny effective public participation in changes and decisions that can significantly affect the environment.

The Committee noted that while it was premature to comment on the actual substance of the first ground, it was considered admissible as it relates to the procedures and obligations of the Aarhus Convention. However, the Committee found the second ground inadmissible as it relates to draft legislation that may still be subject to change.

The UK government has until 5 June 2018 to submit a response to the Committee on the matter.