Far away from the news headlines a BREXIT-like tussle is taking place as the British Government tries to escape its obligations on environmental law.

It concerns the all-important right of citizens to public participation on major infrastructure projects. It derives from the 1998 Aarhus Convention to which the UK is one of 40 (check) signatories, and which – seriously – has nothing whatever to do with the EU. However, its principles are incorporated in EU Directives which may well become irrelevant once we leave the EU. In the meantime, we are bound to observe them.

What few people have noticed is that for years, the UK has been out of compliance with the third Aarhus pillar. That’s the one about providing reasonable access to the Courts for those who wish to challenge adherence to the rights for environmental impact information and for public participation and consultation. The Convention assumes correctly, that unless people can enforce these rights, they are totally valueless. Environmental pressure groups and NGOs throughout Europe and beyond rely on this ‘access to justice’ principle to enforce standards, and to hold project promoters to account.

The British legal system enjoys a fine reputation internationally but is in a phase where the Government is seeking to curb Judges’ ability to frustrate its activities. To avoid discouraging legal challenges, our Courts can place a cap on the costs of an applicant for Judicial Review, but such applicants still face formidable hurdles and the Aarhus compliance committee have not been convinced that the access provisions are sufficient. Now, the Government wants to change the rules to make even these cost-capping arrangements less certain. In the words of the Environmental Link, “The proposals take the UK Government in the opposite direction of travel to compliance.” Following consultations, Scotland and Northern Ireland backed down from some of the proposed changes, but even they are struggling to meet the Compliance Committee’s requirements.

Does it matter?  At one level, maybe not. Our Planning laws – updated in 2008 – oblige project promoters to consult at several stages in the process, and there are many who believe we over-consult. On the other hand, the Aarhus standards are demanding in subtle but important ways – such as the need for an independent element in the public participation process. They probably are more in tune with the international trend towards greater transparency and a scepticism of experts. To walk away from these commitments will suggest that the UK is less interested in protecting environmental standards and is bound to provoke a major row with powerful and popular campaigning groups.

Read the latest Environmental Link Briefing here.