Environmental law after Brexit: Breaching the Dam? Part 4: Public law causes of action and remedies

In the last of our series of four articles on this topic, Isabel Buchanan considers the likely effect of Brexit on causes of action and remedies in environmental public law claims.

Introduction

What Brexit means, beyond the tautological tagline, is not clear.  Its likely effect on environmental public law claims is similarly opaque.  The Prime Minister has said that when the “Great Repeal Act” comes into force, the acquis will crystallise into UK law—although, as Emma Dixon made clear, transposing the complex of EU environmental regulation into domestic law is not straightforward.  The UK Government, as Ravi Mehta noted, has indicated that it is unlikely to significantly depart from EU environmental law standards in the near future.  Given this, one might imagine Brexit to have little impact on the practical aspects of litigating environmental public law claims.  However, George Molyneaux detailed the likely effects of Brexit on standing and costs in such cases.  He concluded that although the impact of Brexit cannot be easily labelled “good” or “bad”, it will be felt by claimants.  This final article in our series considers (by no means exhaustively) two further practical implications of Brexit for environmental public law litigation: how, if at all, will Brexit influence the causes of action available?  Will it have any implications for the remedies claimants are able to seek? 

Causes of action in public law cases

A likely unintended consequence of Brexit, George Molyneaux noted, is that claimants may have greater access to the courts to challenge environmental regulation.  As the standing rules of England and Wales are more liberal than those of the EU, the incorporation of the acquis into domestic law may result in opening environmental regulation to domestic public law challenges that could not be brought before.  So, it could become procedurally easier to bring a claim.  But where a person has standing what effect will Brexit have on the substantive causes of action available to them?

Currently, pre-Brexit, there are at least three main types of environmental judicial review claim invoking EU law:

• First, claims brought on the ground that a public authority has failed to comply with mandatory EU law standards or procedures set out in Directives (as transposed into national law by primary or, more usually, secondary legislation) or in Regulations (applicable in national law without transposition).  For example, failure to carry out an Environmental Impact Assessment (“EIA”) where required;
  
• Secondly, claims based on an error of law by a public authority in seeking to comply with EU law or to confer EU law rights on individuals.  Such a claim might be based on a failure to properly understand or implement EU law requirements in the light of the case-law of the Court of Justice of the European Union (“CJEU”).  For example, the litigation concerning whether the UK had complied with the requirements of the Air Quality Directive in relation to nitrogen dioxide levels in London and other cities (R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs);
  
• Thirdly, claims based on directly effective EU law rights coupled with an argument that there has been incomplete or improper transposition of those rights into national law by the Government.  For example, litigation concerning the designation of special protection areas (such as, Case C-44/95 Regina v Secretary of State for the Environment ex p RSPB [1997] Q.B. 206).
  

Considering these three types of claim in turn, the effects of Brexit might be as follows:

• First, assuming that the relevant mandatory EU law standards are effectively transposed into (or kept in) domestic implementing legislation, a public law challenge based on failure to comply with them will still be possible.  As those standards will no longer have the special status provided by EU law, however, the UK Government and/or Parliament will be free to depart from them in future.  Further, there will be no obligation on the UK to implement environmental regulation in line with developing EU standards—and claimants will not be able to bring claims based on any disparity between the EU and UK environmental regulatory regimes;
  
• It’s more difficult to say what effect Brexit will have on the second type of claim.  As part of the acquis, one might expect judgments of the CJEU that pre-date Brexit to remain binding in the UK (although, as with all of the acquis, it will of course remain open to Parliament to pass subsequent legislation contrary to these judgments).  However, the Prime Minister has also said that upon Brexit “the judges interpreting [our] laws will sit not in Luxembourg but in courts in this country’” and that “we are not leaving only to return to the jurisdiction of the European Court of Justice”.  It appears unlikely, therefore, that post-Brexit CJEU judgments will bind UK courts.  But will such judgments be persuasive authority?  Will parties be able to rely on post-Brexit CJEU judgments that have a direct bearing on those EU environmental law standards incorporated into UK law upon Brexit?  The answers to these questions are unclear.  Claims based on the alleged misapplication of EU law requirements (as transposed into national law upon Brexit) may therefore present fertile ground for argument;
  
• The third type of claim would, at first glance, appear to be dead in the water post-Brexit.  But even here, there may be room for argument.  The UK Government’s stated intention is to transpose the existing acquis into national law.  If that intention is made good in the “Great Repeal Act”, might not a claimant then challenge secondary legislation which in fact under-implements an EU law requirement that was pre-existing as at 11.55pm on Brexit eve?  Here, again, the matter is not straightforward and myriad challenges may arise.
  

Remedies in public law cases

In domestic public law cases, the award of remedies is at the court’s discretion.  However, the UK’s obligations as a member of the EU have historically placed some limits on that discretion where a matter concerns an infringement of EU law.  Whilst a member of the EU, the UK is required to nullify the unlawful consequences of a breach of EU law.  As a result, English law initially provided that where an infringement of EU law is established, a court’s power to refuse relief is circumscribed.  But those limits have recently been relaxed.  In Walton v Scottish Ministers (where the relevant discussion was obiter) and R (Champion) v North Norfolk DC, the Supreme Court reconsidered the scope of the court’s discretion in such cases.  In Champion, the Supreme Court held that even where a breach of EU law is established, the court can refuse relief, so long as the claimant is in practice able to enjoy their rights.  Accordingly, although there is a distinction between the court’s discretion when considering public law remedies in a matter concerning EU law and other public law matters, that distinction is already, pre-Brexit, becoming increasingly narrow.  It is therefore unlikely that Brexit will significantly liberate the scope of judicial discretion in considering whether to grant relief in environmental public law cases.

Where the court does exercise its discretion to award a remedy, however, Brexit may affect the remedies available as follows:

• First, while the UK is a member of the EU its courts are more likely to award mandatory orders in cases involving an infringement of EU law than in general judicial review claims.  For example, the courts have made mandatory orders in cases involving breach of the Ambient Air Quality Directive and the EIA Directive, so as to nullify those breaches.  Post-Brexit, the courts may be less likely to make such mandatory orders in environmental litigation;
  
• Secondly, Brexit may have some (limited) implications for the availability of damages in public law environmental claims.  Whilst the UK is a member of the EU, if the UK breaches EU law in a sufficiently serious manner it may be liable in Francovich damages to a person who has suffered loss as a result of that breach.  An individual may also make a claim in Köbler damages against a national court that fails to correctly apply EU law or to refer questions of EU law where this is appropriate.  Post-Brexit, claimants will not be able to claim these damages.  In practice, though, Francovich damages are rarely awarded and successful Köbler damages claims are rarer still (see, for example, Cooper v HM Attorney General).  So the unavailability of these awards may have little practical impact on public law remedies in environmental litigation; 
  
• Thirdly, and perhaps most significantly, while the UK remains a member of the EU, its courts are required to disapply legislation that is incompatible (and cannot be interpreted compatibly) with EU law.  If, for example, a court finds that primary or secondary legislation implementing EU law cannot be interpreted compatibly with the Charter or decisions of the CJEU, that legislation must be disapplied (see, for example, Benkharbouche and Janah v Embassy of Sudan and others and Vidal-Hall v Google, Inc.).  Although there have been occasions on which the UK courts have not disapplied such incompatible legislation (see, for example, R (Chester) v Secretary of State for Justice, where the Supreme Court held that disapplication of the relevant legislation was not suitable (at [70-74] per Lord Mance)), it remains the orthodox approach.  This is in contrast to the powers of the courts under the Human Rights Act 1998 (“HRA”).  Section 4 of the HRA provides that where the courts find legislation incompatible with a Convention right, they may make a declaration of incompatibility (which, until acted on by Parliament, has no effect on the validity, continuing operation or enforcement of the legislation under challenge and provides no effective remedy for a claimant).  Post-Brexit, there will be no such obligation on the courts to disapply legislation.
  

Conclusion

The Prime Minister committed to converting the acquis in order to provide “maximum certainty” in the wake of Brexit.  This series of articles, however, has demonstrated that that simple statement of intent itself throws up a host of fresh imponderables and unknowns.  From the mechanics of that conversion, as considered by Ravi Mehta, to its impact on the content and scope of environmental regulation, as discussed by Emma Dixon, to its practical implications for litigating public law environmental claims, as addressed by George Molyneaux and Isabel Buchanan: much remains uncertain.  This series has considered some of the challenges and opportunities presented by that uncertainty.  How the various stakeholders navigate these unknown waterways—to extend Ravi Mehta’s opening metaphor—will determine the future of environmental regulation and litigation in a post-Brexit UK.