D. CORRESPONDENCE ABOUT COMMITTEE REPORTS |
64. COMMUNITY ENVIRONMENTAL LAW: MAKING IT WORK (2ND REPORT,
Memorandum from the Department of the Environment,
Transport and the Regions
1. The Select Committee carried out an enquiry during the
1996-97 Session on the implementation and enforcement of Community
environmental law. This followed an earlier enquiry in the 1991-92
Session. The 1996-97
enquiry was a review of progress since that time, particularly
taking into account other reports which had been published during
the period, on the Fifth Environmental Action Programme and on
the European Environment Agency. The enquiry particularly focused
on the Communication from the the European Commission on implementing
Community environmental law, which appeared in October 1996.
The Committee published the Report of its enquiry in July 1997.
2. The Government thanks the Select Committee for its thorough
and helpful report which addresses important issues concerning
the drafting, implementation and enforcement of Community environmental
law. Its contribution is timely in view of the Council's Resolution
on this issue in June;
the United Kingdom's six-month Presidency of the European Union
which begins in January 1998; and negotiations on the enlargement
of the European Union which are due to begin soon. This memorandum
is the Government's formal response to the Select Committee's
Report. The text follows the order of the recommendations made
in the report, which are reproduced in small print throughout
(i) We welcome the Commission's Communication Implementing
Community Environmental Law and the concept of the regulatory
chain" of design, drafting, adoption, implementation, enforcement
and evaluation of environmental legislation. We are pleased to
note progress on a number of the recommendations in our 1992 Report,
but must stress that much remains to be done in developing and
putting the Commission's proposals into practice. Our greatest
concern remains transparency in the Community institutions: we
think that pressure for greater openness is bound to increase
as more Member States adopt general freedom of information legislation.
(ii) We also welcome the Commission's General Guidelines
for Legislative Policy. Some problems of internal coordination
remain which we recommend require attention.
(iii) On the whole we are pleased to note the terms of the
June 1997 Council Resolution on the Commission's proposals. We
remain concerned about the lack of transparency in Council proceedings:
the Community must tackle this problem with determination if implementation
and enforcement of environmental law are to command widespread
public support. Much will depend on how the new Article 191a of
the EC Treaty is applied in practice.
3. The Government is strongly committed to the effective
implementation and enforcement of environmental law throughout
the Community. The Government welcomed the Commission's Communication,
and supported the adoption of the Resolution, which was Council's
response to the Communication, at the June 1997 Environment Council.
4. The Government agrees that the Commission's General
Guidelines for Legislative Policy are a very welcome development.
We would like to see rigorous application of these guidelines
in the preparation of Community legislation.
5. Transparency in Council proceedings, and indeed in the
proceedings of the other Community institutions, is important
in ensuring that regulation commands confidence and support. The
Council Resolution calls for transparency in the development of
policy and the drafting of proposals, and invites the Commission
to keep other institutions and the Member States regularly informed
of its preparatory work and to make available studies and relevant
documentation. The Treaty of Amsterdam which resulted from the
Inter-governmental Conference (IGC) will help to introduce greater
transparency, with a new commitment to more open decision-making;
a public right of access to European Parliament, Council and Commission
documents; and the compulsory publication of Council votes when
Council acts in a legislative capacity. The EU will have two years
to determine general principles and limits for access to documents
under Article 191A of the new Treaty. The Government strongly
supported these provisions and hopes to take further steps under
the UK Presidency to enhance the transparency of EU decision-making
Preparation and formulation of policy
(iv) Although there have been some welcome improvements,
we recommend that the Commission when formulating policy should
pursue a more thorough and open process of consultation, which
should include non-governmental organisations.
(v) We must reiterate our concerns about the unwarranted
secrecy that surrounds scientific and technical advice to the
Commission, which DG XI's reference to comitology" does not
properly address. Advances in science depend for their credibility
on an open process of peer review. That process is frustrated
by absence of transparency. We agree with the Department of the
Environment and English Nature and recommend that papers produced
for the Commission by its expert advisers should be published
and that the outcomes of advisory committee meetings should be
(vi) We recommend that all appointments to advisory and regulatory
committees should be through a fully open process. Membership
should include practitioners from regulatory authorities and industry.
We also recommend that information should be publicly available
on the membership of the formal committees appointed under the
6. The Government agrees that there is room for improvement
in the consultation of interested parties before legislation is
finalised, and fully supports consultation by the Commission on
early drafts of legislation. This proved invaluable in, for example,
the preparation of the auto-oils legislative programme. Early
consultation of interested parties when proposals are being drafted
is particularly important and was recommended in the Council Resolution
which invites the Commission to consult the main actors concerned
in the transposition and practical application at an early stage
on concrete legislative draft proposals so as to, apart from facilitating
subsequent discussions, make legislation easier to implement and
consultation should certainly include non-governmental organisations
7. A variety of tools is available to the Commission for
sounding out the views of the public and interest groups on the
various options. These are outlined in General Guidelines for
Legislative Policy. The Government welcomes, for example,
the Commission's greater use of green papers, a practice which
it believes should be standard practice for proposals which would
substantially affect individuals or undertakings. In addition,
as the Select Committee suggested in its earlier report on this
subject, the Government believes that all draft legislation should
have fiches d'impacte attached, setting out the assessed
costs and benefits of the proposed legislation. In its Single
Market Action Plan, the Commission has made a commitment to establish
a pilot European Business Test Panel to improve consultation with
business, particularly small firms. The Commission has asked Member
States for views, and the Government is currently considering
what the United Kingdom's input should be.
8. On the question of scientific and technical advice, the
Government agrees with the Select Committee that it would be helpful
if such papers were to be made more widely available. Publication
would allow errors of fact and interpretation to be corrected,
and would allow for conflicts within scientific evidence to be
aired openly. The Government recognises that where committees
are established to give the Commission scientific advice, it may
also be appropriate for there to be greater openness about the
membership and results of such committees.
9. With regard to publicising the membership and results
of committees established to assist the Commission in exercising
the Government believes that in most cases different considerations
will apply. These committees are usually attended by civil servants
representing the interests of their Member State, and accordingly
membership will often change from meeting to meeting. Individuals
are rarely if ever appointed in a personal capacity. Furthermore,
the discussions in these committees are akin to negotiations in
Council, and, as the Commission pointed out in its evidence to
the Committee, the Rules of Procedure of many committees provide
for their deliberations to be confidential. The Government doubts
that publication of the membership of these committees would be
useful, if indeed it were practicable. The Government considers
that the question of openness of the proceedings of these committees
should be approached in the same way as the question of openness
in the workings of Council. The Government will therefore consider
the scope for greater openness in these committees as part of
its study of possible new initiatives for the Presidency, referred
to above in relation to the Council.
Form and drafting of legislation
(vii) We welcome the Commission's proposals to improve clarity
of drafting. We recommend that before any directive is adopted,
Member States should examine systematically the practical implications
of implementation. The Cabinet Office checklist on implementing
European law provides a useful methodology for considering such
(viii) Framework directives have advantages in terms of subsidiarity
and allowing for implementation that fits national institutional
arrangements. They must be such as to permit Community-wide monitoring.
10. The Government agrees that Community legislation must
be clearly drafted in order to be properly implemented. This is
reflected in the Council Resolution and in the Declaration on
the quality of drafting of Community legislation agreed at the
IGC. The importance of clarity should be borne in mind throughout
the drafting of proposals by the Commission and in the negotiation
of legislation. It is particularly important, too, to avoid over-bureaucratic
11. The Cabinet Office checklist Implementing European
Law, which was introduced in May 1996 is a useful guide to
the practical implications of implementation in the United Kingdom.
The checklist is designed to avoid the addition of unnecessary
burdens when transposing European legislation. It is mainly intended
for use by Ministers, Government officials and legal advisers
when transposing European measures and when reviewing existing
transposing legislation, and tackles such issues as double-banking"
(where requirements may be met by existing provisions) and gold-plating"
(where implementation may go beyond the standard required) as
well as covering enforcement questions. In instances where Departments
intend to go beyond the precise terms of a directive the checklist
requires them to set out the compliance cost implications.
12. Framework directives do not in themselves necessarily
advance subsidiarity or allow more discretion to Member States.
This depends on the content and substance of the legislation.
Framework directives can take different forms - either the method
where the Council or even the Commission makes daughter"
directives, or alternatively, where the discretion is left to
Member States to decide how to implement. In either case, for
subsidiarity to be observed, legislation should not prescribe
action at Community level which would be better taken by Member
13. Framework directives and daughter directives need to
be sufficiently clear and precise about what is required to allow
the Commission and national courts to enforce them effectively.
Standards expressed at too high a level of generality can be difficult
to enforce across the Community, leading to uneven protection
of the environment and potential distortions of competition.
Transposition and practical implementation
(ix) We recommend that Member States and the Commission should
establish mechanisms for joint and detailed consideration of implementation
requirements before the Member States formally notify legislation
to the Commission. This process would help to identify problems
before Member States have committed themselves too far to the
form and content of national implementing measures.
(x) We strongly support the Commission's proposal that Member
States should be required to provide details of how their national
legislation meets the obligations under particular directives.
In any event we recommend that the Department of the Environment
should adopt this practice for UK implementing legislation and
publish the results.
14. The Government has considered the Select Committee's
view that there would be value in engaging in detailed discussion
with the Commission in the period between the adoption of a Directive
and the deadline for implementation by Member States. On the one
hand, this process would help to identify ambiguities before the
implementation process has gone too far, and at a point at which
corrections can easily be made; similarly this would make clear
to the Commission the institutional and legal framework within
which the Member State's transposition must take place. It could
therefore help to deliver better transposition and more consistent
implementation of EC law across the Community. On the other hand,
there is a potential problem where the Member State and the Commission
have different views about what is required in the national measures;
in these circumstances the Member State must reserve the right
to implement in accordance with its own legal advice and if necessary
allow its interpretation to be tested in the European Court of
Justice. Moreover, there would be no guarantee that the Commission
would remain consistent to the position it expressed at this stage,
particularly when later exercising its discretion under Article
169. So far as UK practice is concerned, the Government considers
that informal consultation with the Commission is sometimes being
helpful, and always keeps this possibility in mind. General application
across the Community, however, would necessitate formal procedures,
for which the balance of advantage is by no means clear.
15. The Select Committee recommended that Member States should
be required to provide details of how their national legislation
meets obligations under particular directives; this could be achieved
in part by the 1991 Standardised Reporting Directive,
the introduction of which the UK strongly supported. The obligations
under this directive should help to ensure consistency of enforcement
of environmental directives, which the UK welcomes. The aim of
the directive is to create a level playing field, with all Member
States providing data which has been collected on a similar basis.
The Standardised Reporting Directive requires Member States to
complete lengthy questionnaires on the implementation of water,
air and waste legislation. At present the questionnaires require
some details of how national legislation meets the obligations
of particular directives but do not require the article by article
comparison that is sometimes referred to as transposition or implementation
tables. Moreover, the questionnaires follow some years after the
directives to which they relate. The first report under this directive,
on the implementation of a number of water directives, was due
with the Commission in September 1996, and the UK was the first
of the few Member States to meet this obligation. The Government
sees some merit in a Community wide adoption of transposition
tables, provided that Member States were equally diligent in producing
them and that they were available on a compatible basis. The Government
however, does not see merit in unilateral publication of transposition
tables, since their virtue lies in consistent application across
all Member States.
Monitoring, reporting and evaluation
(xi) We recommend that all future European Community environmental
legislative measures should contain provision for regular reporting
by Member States on implementation, and that existing measures
are amended to this effect where appropriate. Reports should always
be published. We support the Commission's proposals for a detailed
annual report on implementation and enforcement in the environment
(xii) We commend the Institute for European Environmental
Policy's Manual of Environmental Policy and trust that the Department
of the Environment will continue to support it. We recommend that
the Commission, perhaps with the European Environment Agency,
should explore ways of encouraging the production of similar reference
works in Members States.
(xiii) There is scope for the European Parliament to play
a more active role in encouraging conformity with Community environmental
legislation and in supervising the Commission in the exercise
of its responsibilities. We recommend that reports by the European
Environment Agency should be submitted to the European Parliament
as well as to other Community institutions.
(xiv) National parliaments could be more active in examining
the implementation and effectiveness of existing Community legislation,
as well as scrutinising new proposals from the Commission.
(xv) We urge the Council of Ministers to pay more attention
to implementation issues, on the basis of reports to be provided
by the Commission or the European Environment Agency.
(xvi) The European Environment Agency has made excellent
progress since its inception in 1993. One of its most valuable
tasks is the production of quality assured data. We support its
Chairman's wish to see more effective links with the various committees
advising the Commission.
(xvii) We do not feel that the European Environment Agency
should at this stage be given a formal role in the implementation
and enforcement process. Nevertheless, we recommend that the Agency
should play a role in assisting the Commission in the preparation
of the reports under various environmental directives. Eventually
the Agency might be given the task of preparing such reports in
its own right.
(xviii) In assisting the Commission in the preparation of
reports, the European Environment Agency must necessarily consider
implementation problems as well as the current physical state
of the environment. This need not, however, involve straying into
the Commission's policy territory. The Agency would also be able
to provide guidance to Member States on the information needed
for their own reports to the Commission. We recommend that any
material provided by the Agency to the Commission for these purposes
should be published. We recognise that the Agency's legal expertise
might need strengthening if it were to take on these tasks.
16. Most Community law has contained reporting requirements.
Since the introduction of the Standardised Reporting Directive
there has been a more consistent regime. Future legislation should
contain reporting requirements which are at least consistent with
the 1991 directive. It may not always be appropriate for these
reports to be published, bearing in mind the cost of publication
and the likely level of demand, but the information contained
in the reports will be made available to the general public and
interested organisations under the Environmental Information Regulations
17. More generally, the Commission publishes an annual report
to Council and the European Parliament on monitoring the application
of Community law, and it is possible for the Commission to supplement
that with additional information in the environment field (which
the Government would support). The Council Resolution invites
the Commission . . . to submit to Council an annual survey of
the environment containing, inter alia, detailed information on
transposition and practical application by Member States of Community
18. The Government notes the Committee's commendation of
the Manual for Environmental Policy and fully agrees with
its view that the Manual is a valuable reference tool. The Government
has supported the Institute for European Environmental Policy
(IEEP) in its production of the Manual since its inception in
1991, and greatly values IEEP's contribution to understanding
and informing European environmental policy making and its implementation
in the UK. The Department of the Environment, Transport and the
Regions uses the information in the Manual for its own purposes
and, on the basis of a competitive tender, has now awarded this
contract to another organisation, WRC. The Government continues
to value the Manual and agrees that similar reference works might
be useful to other Member States.
19. The Government notes the recommendations at xiii, xiv,
xvi and xviii, addressed to the European Parliament, the European
Environment Agency, the Commission and national Parliaments. It
considers that the European Parliament has a valuable role to
play in Community decision making, particularly in areas that
are subject to majority voting in the Council. It also strongly
supports an enhanced role for national parliaments in the European
Union. In addition to its support for the Treaty protocol on this
subject agreed at Amsterdam, the Government is presently considering
proposals for making the UK's national parliamentary scrutiny
system more effective.
20. The Government supports the Select Committee's view that
the Council of Ministers should give more consideration to implementation
of environmental law. Council discussed implementation issues
in June when it adopted the Resolution on the drafting, implementation
and enforcement of Community environmental law. It is likely that
implementation issues will return to Council's agenda in future
in the context of the further action that was called for in the
21. The Government agrees with the Select Committee that
it would not appropriate at this stage for the European Environment
Agency (EEA) to have a direct role in implementation and enforcement.
The expertise of Agency staff, and that of the expert organisations
with whom it has established links, lies in monitoring and research,
not in implementation and enforcement, nor directly in inspection.
If the Agency were to extend its functions in these directions,
this would require both a very considerable increase in resources
and a very different body of staff and network of contacts. The
EEA should however continue to collate information on the standards
and methodologies used to collect environmental data. The primary
role of the EEA should remain the provision of information about
the state of the environment and related pressures on it. This
is the best way for it to contribute to the development of policy
both within the Commission and Member States.
22. The Regulation establishing the EEA is currently being
reviewed. This review included consideration of a number of potential
new tasks. The effect of the Commission's Proposals is that the
EEA should continue to focus on its present core tasks of improving
data quality, comparability and reporting at the European level.
Among other points, they suggest that it would not be appropriate
for the EEA to have an inspectorial role on implementation and
enforcement, though it could do more to support the enforcement
process, for example by supporting DGXI further on data collection
and monitoring aspects of the Standardised Reporting Directive.
(xix) We strongly support the Commission's proposal to develop
guidelines for national inspectorates. A high degree of uniformity
across the Community in inspection standards is an essential prerequisite
of effective enforcement at Member State level and need not detract
(xx) IMPEL - the Community - wide network of professional
inspectors mainly involved in pollution control - is a useful
initiative, but its relationship with the Commission and the European
Environment Agency is unclear in the Commission's Communication.
We recommend that this is clarified as quickly as possible.
(xxi) We are concerned that the Commission appears to envisage
IMPEL developing into a semi-official regulatory body. We consider
IMPEL should remain a professional association, independent of
the Community institutions, and should not take on any formal
role in the implementation and enforcement of Community environmental
law. We recommend that establishment costs of IMPEL should be
shared between the Member States, not borne by the Commission.
We also recommend that IMPEL should regularly consider implementation
issues and offer opinions on them, in published reports, to the
Commission, the European Parliament and the Council of Ministers.
(xxii) We consider that there would be value in having a
similar professional grouping of national regulatory bodies concerned
with nature protection and related matters, complementary to IMPEL.
(xxiii) If a Community-level inspectorate of inspectorates"
were to be established, the logical home for it would be European
Environment Agency. But we agree with the Commission that the
question of formal machinery for auditing national inspectorates
need not be pursued for the time being.
23. The Council Resolution asked the Commission to propose
minimum criteria and/or guidelines for national inspectorates,
and a paper is currently being prepared by the EU Network for
the Implementation of Environmental Law (IMPEL). The Environment
Agency, which, along with the Scottish Environment Protection
Agency and the Environment and Heritage Service (Northern Ireland),
represents the UK on IMPEL, has been in the forefront of preparing
this paper. Consistently high inspection standards across Member
States are essential in ensuring the full and effective implementation
of Community environmental law throughout the Community. In due
course, it will be for the Commission to propose, and Council
to consider, whether to adopt minimum criteria or guidelines for
24. The relationship between IMPEL and Community institutions
was set out in a paper on the future of IMPEL which was agreed
at IMPEL's plenary meeting in May: IMPEL continues to be an independent
network of inspection and enforcement agencies. The representatives
of Member States meet in a biannual plenary session; while the
Commission holds the joint Chairmanship of plenaries, it does
not have the right of decision. IMPEL has no formal links with
either the European Parliament or the Council of Ministers.
25. IMPEL was set up as a network of inspectors of industrial
installations in order that they should be able to exchange information
and expertise, and while its role has recently been enhanced by
the adoption of the Council Resolution on drafting, implementation
and enforcement of environmental law, the Government would not
like to see the network move too far away from the purpose for
which it was originally conceived and in which its value lies,
particularly in view of the impending enlargement of the Community
by the accession of Central and Eastern European countries. The
Government agrees with the Select Committee that it is important
for IMPEL to continue to be an independent network of professionals.
We share the Committee's concern that IMPEL should not develop
into a semi-regulatory body.
26. Until recently, IMPEL was financed almost entirely by
its members, with the exception of the provision of an office
in the European Commission and the secondment of a Commission
official to its secretariat. This year IMPEL received 500,000
ECU from the EU budget to support the cost of carrying out research
and producing reports. At the same time IMPEL's secretariat has
been augmented by a secondment from the Environment Agency. It
is expected that a similar amount of money will be allocated by
the European Parliament next year. In order to account for this
contribution from EU funds, a report on the activities of IMPEL
is to be included in the annual report of the Commission. In its
Resolution, Council considered that IMPEL would require appropriate
financial means and a secretariat.
27. IMPEL does not cover drinking water. The Drinking Water
Inspectorate has established liaison with agencies in other Member
States through an informal network of contacts.
28. The Government notes the idea of a professional grouping
of national regulatory bodies, similar to IMPEL, for nature protection.
Such a body could help to ensure that Community legislation in
this area was being implemented to common standards. The Government
would give constructive consideration to such a proposal from
29. The Government shares the Committee's view that at this
stage an inspectorate of inspectorates should not be established.
The preparation of minimum standards and/or guidelines on inspections,
to be monitored by Member States themselves,
which is currently being taken forward by IMPEL, is the right
way forward. The Government considers that it would be best to
wait and see how this will work in practice. We agree that in
any event the European Environment Agency does not at present
have the necessary expertise to undertake the role of auditing
(xxiv) We welcome the Commission's concern to place more
emphasis on ensuring that national legislation implementing Community
obligations fully reflects Community law and is in place in time.
(xxv) For cases of poor implementation, where it is appropriate
for the Commission to initiate proceedings against Member States
under Article 169 of the EC Treaty, we recommend that the Commission
should develop and publish (as it has done in the competition
field) a more clearly defined statement of its policy and priorities
for handling such cases. We welcome the European Ombudsman's initiative
in investigating the Commission's performance in this field.
(xxvi) We suggest that a Commission official in each Member
State should have the task of compiling factual dossiers on complex
complaints, to shorten the present cumbersome communication chain
between the Commission and Member States in these cases and to
ease the burden of the Legal Unit in DG XI - although we consider
that the directorate-general's complement of lawyers needs to
be strengthened in any event.
(xxvii) As a matter of good administration, we recommend
that the Commission should always inform complainants each time
a critical decision is taken, such as to drop an investigation
or start Article 169 proceedings. Where the Commission and a Member
State has settled" an action - eg, with the Member State
undertaking to take corrective legislative action - we recommend
that the parties should publish an agreed statement of the results
within one month, and that until such procedures are agreed UK
government departments should adopt the practice unilaterally
for all cases in which they are involved.
(xxviii) We recommend that the European Parliament should
take a closer interest in the handling of complaints to the Commission.
We recommend that the Commission should be required to publish
regular reports to the Parliament on its dealings with Member
States in this area. We also recommend that more information is
published on the outcomes of re«unions pacquet meetings,
and that complainants should be informed of progress on items
that affect them.
(xxix) We wish to re-state emphatically the recommendation
of our 1992 Report that Article 169 letters, Reasoned Opinions
and the responses to them should be in the public domain. We would
be content for publication to occur at the point where papers
are lodged with the Court of Justice.
(xxx) Notwithstanding some reservations in our 1992 Report,
we welcome the Commission's decision to press ahead with a number
of cases where it will be asking the Court of Justice to apply
financial penalties under Article 171 of the EC Treaty to Member
States who have failed to comply with judgment of the Court. We
believe these will have a salutary deterrent effect.
30. The Government endorses the Committee's view that the
Commission is right to place more emphasis on ensuring that national
legislation fully implements Community environmental law and is
in place in time. This is the most effective way to ensure effective
implementation across the Community. Nevertheless, the Government
considers that the Commission should continue to pursue individual
cases of poor implementation in appropriate cases. Like the Committee,
the Government believes that the Commission should publish a more
clearly defined statement of how it will determine which such
cases it is appropriate to pursue under Article 169. The Government
also welcomes the European Ombudsman's initiative in this area.
31. As regards the publication of Article 169 letters, reasoned
opinions and responses to them, it is an established convention
agreed between the Commission and Member States that correspondence
between the parties should be confidential. Very often such correspondence
contains unsubstantiated allegations and provisional legal opinions
which may be modified subsequently in the light of further information
received. Although the texts of Article 169 letters and reasoned
opinions and responses to them remain confidential, decisions
to issue a reasoned opinion or proceed to the European Court of
Justice are routinely published by the Commission by means of
a press statement.
32. Article 169 correspondence forms part of what can be
a delicate process which might be prejudiced if both the Commission
and Member States were having to take a public position at an
early stage. This correspondence is treated as confidential both
by the Commission and by all Member States. The same consideration
apply to the results of meetings between officials of the Commission
and national governments to discuss Article 169 correspondence.
The Government does not therefore support the Committee's recommendation
that the results of these are published.
33. The Government endorses the Select Committee's welcome
for the Commission's decision to make greater use of Article 171,
which allows for fines to be levied on Member States who fail
to comply with judgements of the Euroepean Court of Justice. The
threat of applying Article 171 has already proved effective in
a number of cases.
Access to justice
(xxxi) We endorse in general terms the Commission's proposal
to rely more on national courts and authorities in ensuring compliance
with Community environmental law. We are concerned, however, that
the Commission retains a watchful eye and does not derogate its
responsibilities. Such a policy makes the need for good quality
reports on directives all the more important.
(xxxii) Although locus standi may no longer be a serious
obstacle to environmental litigation in the United Kingdom, we
find that the cost rules can be a major deterrent to non-governmental
organisations and others seeking to challenge decisions by the
authorities. We support the Law Commission's 1994 recommendations
that in judicial review cases the courts should have a discretion
to award costs out of public funds, even where the applicant loses,
where a case is considered to be in the public interest. It would
be helpful if applicants could be told at the earliest possible
stage whether their case is likely to fall within that category.
(xxxiii) We think the Commission's proposals, currently not
precisely articulated, to encourage the establishment of national
environmental ombudsmen or tribunals merit pursuit, as a more
cost-effective means of dealing with certain types of dispute,
provided that they do not detract from the courts' responsibility
for interpreting the law in what are often complex cases.
34. The Government agrees with the Commission that it is
right to rely where possible on national courts in ensuring compliance
with Community environmental law. The Government welcomes the
recent relaxation of rules of standing in relation to environmental
organisations in courts in the UK, and has not raised issues of
standing in recent challenges brought by environmental organisations.
35. The Government is considering how best to fund public
interest cases. This was touched on in the Law Commission's report
on judicial review as well as by Lord Woolf. More recently, Sir
Peter Middleton in his report on Civil Justice and Legal Aid recommended
a separate fund administered by the Legal Aid Board to pay for
such cases. We are considering how best to make such cases affordable,
but have yet to reach a final conclusion.
36. The Government generally favours methods of dealing with
disputes which avoid going to court; however, as the Committee
has noted, the respective roles of the courts and any other bodies,
such as ombudsmen or tribunals, which may be empowered to deal
with such disputes, would have to be carefully defined.
(xxxiv) The energy, enthusiasm and expertise of non-governmental
organisations can contribute significantly to effective implementation
of environmental policies. We commend the Department of the Environment's
Wildlife Law Enforcement Group as a model to the Community of
constructive cooperation between NGOs and regulators. We support
the principle of some public funding for NGOs subject to appropriate
37. It is the Government's practice to consult with NGOs,
industry and local authorities on all proposed Community environmental
legislation. Now that the English and Welsh courts have given
a liberal interpretation to the term locus standi, it is
likely that a responsible NGO, with a record of involvement on
behalf of the public in the subject matter of a decision challengeable
on judicial review, will be accepted by the courts as having sufficient
interest to make a challenge. The Government welcomes this development.
38. The Government considers that there is a clear role for
responsible NGOs in helping to ensure compliance with Community
environmental legislation, as in promoting public debate and concern
for the environment generally. The Government will continue to
consult and work closely with them.
Implications for the future enlargement of the community
(xxxv) The prospect of further accessions makes it all the
more important to establish more transparent, systematic and focused
procedures of implementation and enforcement of Community environmental
law. We commend the efforts of the European Environment Agency,
IMPEL and the European Environment Bureau in helping to build
capacity in the national agencies and NGOs in the countries of
Central and Eastern Europe. The PHARE programme of assistance,
properly targeted and with improved procedures (as recommended
by this Committee and the Court of Auditors) should have an important
part to play in supporting the process of approximation of environmental
law in the countries which aspire to join the European Union.
39. The Government is broadly content with the recently published
Opinions of the Commission on the Central and Eastern European
Countries which have applied for membership of the European Union.
The UK is a strong supporter of enlargement and looks forward
to decisions at the Luxembourg Council in December which will
allow the opening of accession negotiations early in 1998. Enlargement
offers an excellent opportunity to raise environmental standards
in Central and Eastern Europe and to extend the Single Market
with its common standards for environmental protection.
40. The Opinions underlined the need to build administrative
and enforcement capacity in the accession states in order to ensure
implementation, and not just formal transposition, of Community
environmental law. The Government supports the proposed reorientation
of the EU Phare programme in order to improve its effectiveness
in assisting the necessary institutional capacity building. The
UK is also providing technical assistance relating to EU integration
to national agencies and NGOs through the know How Fund and IMPEL
and other networks.
European Environment Division
5 November 1997
Report 1991-92, Implementation and Enforcement of Environmental
Legislation, HL Paper 53. Back
Council Resolution on the drafting implementation and enforcement
of Community environmental law, 97/C321/01 OJ, adopted by the
Environment Council in June 1997 (hereafter Council Resolution). Back
Resolution paragraph 5. Back
Committees whose procedures are defined by Council's Comitology
Decision 87/373/EEC. Back
Council Directive 91/692/EEC. Back
Resolution paragraph 17. Back
Council Resolution paragraph 23. Back
Council Resolution paragraph 17. Back