Академический Документы
Профессиональный Документы
Культура Документы
By
Suziana Ahmed Shukor
MA (Business Law)
I COTOSTAT
November 1997
Acknowledgements
My thanks go to the many people who have helped me with advice, data and
encouragement with this research. These include my husband, mother and children,
for their support and love, Mr.Neil Stanley for supervising me, Mr.Matthew Page (Institute of Transport Studies), Mr.Mike Kelly (Leeds Environment and Energy Centre), Mr.Chris Hill of the Environment Department of Leeds City Council and
Mr.Richard Clark at the Environment Agency. Thank you.
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Abstract
This research sets out to investigate the impact of EU environmental law on the UK air pollution control with specific reference to Leeds. It highlights the difficulties
faced by the UK regulatory regime in controlling air pollution such as problems of
interpreting EU environmental directives. It also endeavours to demonstrate how difficult it is to protect the environment due to industry and commerce lobbying in
Britain as well as in European Union.
This research also analyses the impact of EU environmental law on Leeds air
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Tables of Contents
Chapter 1 Introduction
1.1 1.2 1.3 1.4 The Outline of this Research The Methodology The Leeds Context The Possible Health Harms Associated with Air Pollution
1.5
Summary
Chapter 2
Role of EU Environmental in Controlling air Pollution in the UK Introduction 2.1 2.2 2.3 A Brief History of UK Environmental Law Membership of European Union The Benefits of Implementing and Enforcing EU Environmental Law in the UK
2.3.1 Standard Setting
2.4
2.4.3 Subsidiarity
2.4.4 Standard Setting Problem 2.4.5 Lack of Local Government Awareness ofEU Environmental Law
Summary
Chapter 3
The UK Air Quality Strategy The EC Air Quality Strategy Commentary on the UK Air Quality Strategy
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Integrated Pollution Control (IPC) Commentary on IPC The Impact of EU Integrated Pollution Prevention Control (IPPC) Local Authority Air Pollution Control (LAAPC) Access to Information
4.1.1 4.1.2
The General background What does the Leeds Air Pollution Report state?
4.1.4 What do the measurements imply? 4.1.5 Commentary on the Leeds Air Quality Strategy
4.1.6 The North East Environment Agency
4.2
Transport UK
4.2.5 Problems
Summary
Chapter 5
Recommendations
5.1
5.2 5.3 5.4 5.5 5.6 Conclusion Glossary
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1 2 3 4 5 6
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CHAPTER 1 - INTRODUCTION
Health problems originating from air pollution have generated many studies (will be
discussed later in this chapter). For example an American study made by the
Department of Environmental Medicine identified associations between ambient air
pollution and adverse human health effects.'Although this is not without controversy (will be discussed later in this chapter), public concern regarding the possible health
hazards of air pollution is triggered.
To find out to what extent EU environmental law can assist in the control of air pollution in the UK with specific reference to Leeds.
Chapter 1 will discuss the adverse health effects caused by air pollution as well as the
possible benefits that the UK can gain from reducing its air pollution.
Chapter 2 will discuss the role of EU environmental law in controlling the level of air
pollution in the UK. This will include discussions on the doctrine of direct effect, the
See George D.Thurston - Human Health Effects of Exposure to Air Pollutants (Department of Environmental Medicine) httpV/www.med,nyu.edu/Research -" We found that air pollution produces consistent adverse health consequences across the various populations and locations we researched. For example, on high-ozone, air-pollution day, New York City Hospital admissions for respiratory causes rise approximately 20% above otherwise expected figures."
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benefits (if any) and problems (if any) of implementing and enforcing the EC
environmental directives.
Chapter 3 will discuss the UK's own initiatives in controlling air pollution -
Integrated Pollution Control (EPC), Local Authority Air Pollution Control (LAAPC), the Air Quality Strategy and Access to Information.
Chapter 4 will consider Leeds air quality and road transport strategies. This will
Chapter 5 will discuss the possible steps, which can be taken to control air pollution
This research is based upon both documentary evidence and interviews. The
respondents were the monitoring officer from the regional office of the Department of
Environment (DoE) (Leeds Environment Department), a Chief Inspector from the
Environment Agency *s branch in Leeds and an air pollution campaign leader from the
local branch of Friends of the Earth (FoE) in Leeds.
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Problems:
Difficult to obtain up-to-date documents. Difficult to obtain respondents' genuine opinions and problems in carrying out their duties and therefore there is a risk of being informed of just the departments' policies.
Respondents are reluctant to be quoted personally and have requested anonymity.
(Fraser, 1980). hi addition to that, it has also recently become one of three
'Environment Cities* in the whole UK. hi 1989, the National Road Traffic Forecast
*\
an increase of motor vehicles on the road from 83% to 142% in the UK by 2025. For
this research, Leeds will be a useful barometer of progress made at local level. Hence
whatever achievements and failures Leeds has obtained so far, can be studied for the benefits of all other cities.
It is necessary to analyse the possible adverse health effects caused by air pollution in order to understand why it needs to be controlled.
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The concentrations of PM10 (Paniculate matter 10 microns or less in diameter)3 in large UK cities are within the range recorded in the US study (a study of six urban
areas in the US4. By making the assumption that particulate material in urban air is
similar in the two countries, and extrapolating from the results of the US study, it has
been suggested that PM10 may be responsible for as many as 10,000 extra deaths a
year in England and Wales. Although there is insufficient data about the origin, nature
and ambient concentrations of particulates in UK cities to allow the validity of this
In New Orleans, US, a study found that ozone, smog, and airborne particles were both
linked to asthma development. 5A further 5year study in London has found that more
people die when ozone and particulate levels in air are high. In 1995, the London Air
Quality Network reported that London's air quality was deteriorating despite the
introduction of catalytic converters (CATS) on new cars. According to Professor R.
Anderson of St. George's Hospital, severe air pollution episode in December 1991 has
killed 100-180 people,6 However, this has been refuted by the COMEAP 1995 Report
See Leeds Local Council - Green Strategy 1992 See The United Kingdom National Air Quality (1997) DoE at p 189 4 See Dockery, W.D., Pope, C.A. et al. (1993). Mortality and air pollution in six US cities. The New England Journal Medicine, 329, 1753-1759 hi the Royal Commission on Environmental Pollution (1994) 18* Report - Transport and the Environment HMSO: Cm 2674 at p 31 5 See Doctor's Guide -http://www.plsgroup.com/dg/898e.htm - researches from Loma Linda University of Arizona and the US EPA examined more than 3000 non-smoking Seventh Day Adventists in California between 1977 and 1992. During this period, 106 study participants developed asthma. The investigators compared the cases to measured levels of pollution and discovered that ambient air pollution exposure was significantly related to the development of asthma. See further The New Scientist 14/1/1995 reported a study by the US Centre of Disease Control that showed 63% of US asthmatics lived in areas that failed federal air quality standards. 6 ENDS Report 254 March 1996 at p 10
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on Asthma and Outdoor Air Pollutants which states that there is no evidence showing
The Royal Commission admits that the amount of UK research relating to adverse
health effects from air pollution was small compared with the US, some other European countries and Japan.
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The above section demonstrates why there is a need to control air pollution although
the COMEAP report in 1995 suggested that air pollution has no direct link to asthma.
Nevertheless other findings in the US, cannot be so easily dismissed,9 It is submitted
that it is both myopic and dangerous to ignore the health hazards caused by air pollution discovered by these bodies or organisations just because the COMEAP 1995 Report indicates otherwise. This is especially true since the COMEAP admitted that
there was lack of data available in the UK.
See Committee on the Medical Effects of Air Pollutants (COMEAP) 1995 Report - Department of Health (1995), COMEAP Report on Non-Biological particles and health (Department of Health 1995)" We conclude that, in terms of protecting public health, it would be imprudent not to regard the association as causal. We also believe that the findings of the epidemiological studies of the acute effects of particles, which have been conducted in the US and elsewhere, can be transferred to the UK at least in a qualitative measure. However, we consider that there are insufficient UK data available to allow direct extrapolation and reliable estimation of effect in the UK" See further the United Kingdom National Air Quality Strategy (1997) on the possible health effects caused by some of the components in air pollution like ozone, carbon monoxide and sulphur dioxide. See ENDS Report 242 March 1995 at p 3 on the US epidemiological study of fine paniculate matters and heart and lung diseases - adults in cities with the highest levels of fine particulates were at a 17% greater risk of dying than those in the least polluted areas. See ENDS Report 269 June 1997 on a large-scale epidemiological study by US researchers found that babies exposed to high levels of paniculate air pollution are 10% more likely to die in infancy than those exposed to low levels. See ENDS Report 233 June 1994 at p 29 - exposure to benzene in air may be causing 3000 deaths in the UK each year and 70% case of childhood leukaemia. See ENDS Report 234 July 1994 p 29 -conflicting evidence on vehicle emissions and health.
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Having said that, there is also a need to explain why air pollution should and must be controlled, apart from its associated adverse health factors. In the USA, an estimated
increase in the value of 0.8 billion to 2 billion of production in the agricultural
sector can be gained annually if the level of ozone across the USA can be reduced by
10% to 40% respectively.10This shows that economically, it is beneficial for the UK to
control its air pollution level. Apart from reducing damage to human health,
vegetation soils, crops, water resources, fish stocks and buildings, a central estimate
Summary
The possible economic benefits that can be gained from controlling air pollution
refutes the general perception that protecting the environment is in conflict with
economic growth and prosperity. In fact, air pollution can prove to be costly to the economy as a whole. For example, asthma in children and adults costs the UK
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pollution, even though the Department of Health argues that there is no evidence to
show that air pollution has a direct link to causing asthma nor aggravating it.13
See Royal commission Cm 2674 at p 31. See fh 1,3 and 4 (Chapter 1) 10 See ENDS Report 231 April 1994 at p 10 11 See ENDS Report 241 February at p 6 (suggestion made to the DoE) 12 See ENDS Report 249 October 1995 at p 9
13
See BBC News 8/10/1997 - A recent Government investigation discovered that there is a direct link
between the mad cow disease, BSE and the human version of the disease, CJD. This has led to a great criticism on the last Conservative Government, which repeatedly denied such allegation, stating that there was no evidence to show such link. In the mean time, 21 deaths caused by CJD have been reported. Thus, taking a similar approach, the last Government claimed that there is no evidence to show a direct link between asthma and air pollution. It will not, however, be pleasant to discover as with the case of BSE, that a new research discovers otherwise.
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Introduction
This chapter will look at the role of EU environmental law in controlling air pollution
in the UK. How important are EU environmental directives to the UK regime? In what
ways the UK can benefit from implementing them? Are there any shortcomings? This chapter will analyse the impact of EU environmental law on the UK environmental
regime including the air pollution control.
Britain established the world's first national public pollution control agency.1 Under
the Alkali Act 1863, an Alkali Inspector was appointed to act as a regulator of alkali
processes. In 1874, another Alkali Act was passed and this introduced the concept of best practicable means (BPM)2. This concept ensured that there was to be a conciliatory and co-operational approach towards law enforcement which would not place 'an undue burden on manufacturing industry'.3
See Ball and Bell - Environmental law 3rd edition at p 9 See Ball and Bell at p 26 This phrase was never statutorily defined. Instead it was explained in relation to different processes in BPM Notes published by HMDP and its predecessors. Even these were not comprehensive, since an important feature is that it allows flexibility to cater for local and individual circumstances. 3 Seem2 (chapter2)
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supplemented by the Clean Air Act 1968, which were introduced to control air
Why then does the UK need the intervention of EU environmental law5, if it appears that it has already had its own set of emission law and has developed its own concept
of tackling air pollution problems? This is mainly due to its membership of the
The UK legal system does not recognise EU environmental law as part of its own unless it is incorporated into UK law by an Act of Parliament.6 However, to what extent EU environmental law becomes part of the UK legal system will depend on the
4 5
See Ball and Bell at p 324 See Diana Good - Why EC environmental law affects your business: A view of environmental law from the EEC with particular reference to the transport sector. (1991) Issue 2 Vol. 3 LMELR at p 50 on a brief history of EC environmental law. 6 See Section 2(1) of the European Communities Act 1972, which provides that EC law, is to form part of the law hi the UK. 7 See Thornton and Beckwith - Environmental Law (1997) Sweet and Maxwell at p 63
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Direct effect
This basically means that if a provision of the EU law is "directly effective" or has a
"direct effect", the EC law takes priority over domestic law Article 169.8 Thus,
national courts must apply it in preference to national law.9Most of EU environmental law is in a form of Directives10. In order for a directive to have a direct effect, it must be sufficiently clear and precise, to the extent, Member States have no discretion in the method of implementing it. However, difficulties occur when many of these
However, the ECJ uses two different approaches to enable EU environmental law to
have the direct effect (despite the problem of discretion). First through the notion of"
See Article 169 " If the Commission considers a Member State has failed to an obligation under this Treaty (EEC Treaty), it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observatiobs. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice" 9 See fh 7 10 See Article 189 (3) " A Directive shall be binding as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of forms and methods..." 11 See fh 7 12 Seem? 13 (1994) IECR 1125 - See the European Court of Justice held that Article 4 of Waste Directive 75/442/EEC could not nave direct effect because it was not unconditional and not sufficiently precise. 14 See Thoraton and Beckwith at p 64.
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The ECJ uses this principle to overcome the problem of "direct effect" as discussed in
the previous section. This means environmental Directives can still be invoked against
the Member States by widening the definition of certain phrase(s) or word(s) such as
"the State". '6 In Foster v British Gas pic ll, the ECJ held that the direct effect principle
could be relied against:
"... a body, whatever its legal form, which has been made responsible, pursuant to a
measure adopted by the State for providing a public service under the contract of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relation between individuals ".
This indicates that EU environmental directives can still be directly effective on local
authorities or public bodies or any organisation that comes within the ambit of the above ECJ judgement.
Indirect effect
The principle of indirect effect requires national courts to interpret domestic law
consistently with the Community law.18 This principle will still apply even where the
national provisions in question were adopted after the Directive. In Marleasing S.A. v
See Somsen and Bovis at p 185 15 See & 12 16 See fii 12 case C188/89 (1990) IECR 3313
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La Commercial Internaciona de Alimentation S.A.19, the ECJ held that national courts
will have to strike out any domestic legislation if it is inconsistent with the
Community law. However, the UK national courts have shown their reluctance to
uphold this principle over the UK law - R v Swale Borough Council and Medway
Ports Authority, ex parte RSPB.20 In this case, the UK court focused solely on
interpreting the planning regulations and did not consider the wording of the Directive
they purported to implement at all.21
Under the judgement of this case Francovich and Others v Italian Republic22,
individuals can obtain compensation from a Member State for its breach of an EU
environmental obligation. In this case the ECJ held that there are several conditions to be met before a Member State can be held liable for breaching its EU environmental
Community obligation".
Secondly, the result required by the Directive must include the conferring of rights for the benefit of individuals. Thirdly, the content of these rights must be identifiable in
the Directive. Fourthly, there must be a causal link between the breach of the State's obligation and the damage suffered by the persons affected.24
Von ColsonvLandNordrhein-Westfalen, Case 14/83 (1984) ECR 1891 (1992)1CMLR305. 20 (1991)JPL39 21 See Thomton and Beckwith at p 65. 22 Cases C6/90 and C9/90 (1991) I ECR 5357 23 See fh 19 24 See G.Stuart Combating non-compliance with European Community environmental Directives (1994) ELMR 160 at p 166 on the shortcomings of the Francovich principle
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However, in reality, the Francovich principle has several disincentives. First, this
principle applies only where a Directive confers individual rights but majority of
Francovich principle.
This section will consider the benefit (if any) Britain has gained from implementing
and enforcing EU environmental law. It illustrates why Britain should (and not only
because it has to) enforce such law. The criticisms of these benefits (if any) will be
dealt in section 2.5
introduce, or maintain, more stringent measures than that of the EC measure.26 This
25
See Somsen and Bovis at p 187 - the protection of the interests breached by the unlawful act must belong to the objectives of the norm that has been violated. 26 See Article 130t "The protective measures adopted pursuant to Article ISOshall not prevent any
Member State from maintaining or introducing more stringent protective measures. Such measures
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new concept has shifted Britain from its traditional method of enforcing compliance, from being co-operational basis to a more confrontational one.
T-T
Through their membership of the EC, Member States must now implement EU
will not be unfairly attracted to set up their establishment in Member States that
impose low air pollution standards since they do not have to upgrade their production
san rely on those standards without having to rely on the Government's environmental
17
See Hawkins Environment and Enforcement Regulation and the Social Definition of Pollution ;i984) Clarendon Press on a study of water enforcement- Chapter 2 on Standard Setting at pp 28-29, " Standard setting is not a large part of water authority activity because most discharges have long since legotiated their consents..." See Chapter 6 on bargaining from pp!22 126, " A sense of mutual trust is important in sustaining the bargaining relationship: trust that the polluter will not 'pull a fast one', trust that the officer will not penalise theoretically illegal conduct."(at p 123) See Chapter 7 on Negotiating Tactics from pp 141-147-" Negotiations often open with preparatory vork by the field man designed to make the discharger receptive to his requests. A common ploy is to ippeal to the polluter's sense of social responsibility." (at p 141) Although Hawkins conducted his research on water enforcement, chapter 3 of this dissertation on air pollution will try to analyse whether or not the same method applies to air pollution enforcement as well. See W.G.Carson-White-collar-crime and the enforcement of factory legislation (1970) 383 British fournal of Criminology at p 10 " .. .informal rules governing the general attitudes of occupier and the promptness of their response to pressure from the Inspectorate played a crucial part in the determination jf appropriate enforcement decisions." See Environment Action August/September 1997 at p 4- the chief executive of the Environment \gency, Ed Gallagher stressed on the importance of moving away from the traditional co-operational ipproachi'Ve need heavier fines for pollution incidents - current leveller little more than a flea bite for
nany industries ".
18
See Ogus - Regulation: Legal form and economic theory (1994) Clarendon Press from pp 174-179 "or a further reading on standard setting. 19 See &Tot>rJ - Different air pollution standards amongst the Member State will impair the concept of reedom of movement. Meeting higher and more stringent emission standards will normally mean that ndustry has to incur higher cost of production, which may mean lower profit margin if the goods have elastic demand. In addition to that the higher price of the goods may mean losing out to cheaper goods iriginating from Member States that have lower and less stringent emissions standards. Consequently, ndustry will be attracted to establish their operational plants there!p 51 J
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policy solely (that may change from one Government to another)30. Besides, it has not
to worry about competition being impaired by other Member States that have lower
air pollution standards. In short, becoming a Member State, the UK Government must
implement EU air pollution directives, whether or not it likes the very idea.
Secondly, English private law remedies such as the use of civil law compensation
However, several problems of enforcement have undermined the full effect of EU environmental law. In many respects, these problems have defeated the basic EU
preventative approach on protecting the environment (will be discussed below).
UK as merely on documents. The real challenge will eventually be how much of this law has actually been enforced - that is, how much the UK regulators follow what is being implemented that is the real action. Environment sceptics like Good argued
30
See Weale, Pridham, Williams and Porter -Environmental Administration in Six European states; Secular Convergence or National Distinctiveness? (1996) Pub.Adm. Vol 74 at p 255 on a discussion of six Member States* attitudes (including the UK) towards protecting the environment,
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that the enforcement process at Community level lacks real teeth.32 The scope of this
section is to highlight the problems of enforcing EU environmental law in controlling
air pollution and how mere words on pieces of paper will not secure compliance, by
the potential polluters nor by the Government itself.
It is debatable whether rules focusing solely on emissions will lead to compliance with
Community limit values. According to the European Commission latest annual report
on the application of Community law,35 suspected breaches of EC rules are more
common in the environmental field than in any other area except internal market.
31
32
See Ogus at p 152; see Ogus Chapter 3 for a discussion on private law failures. See G.Stuart at p 162 33 See Ball and Bell at p 262 34 See Environment Business (15/271995)
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See in 32 See ENDS Report 249/1995 at p 37 - The UK, which takes pride in claiming mat its compliance with EC rules is virtually free of blemishes, was one place of the bottom. The Report states: " The most serious problem in the environmental field is the failure of Member States to apply EC Directives
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For example, the EC limits on smoke, sulphur dioxide, lead and nitrogen dioxide have
been implemented in the UK by administrative means and were only given statutory force in 1989 after the threat of legal action by the Commission.
lo
Another setback with the EU environmental law concerns with the actual results on enforcing it. For example, is Article 169 sufficient to prevent harm on the
environment?39 There are several issues that should be raised regarding the problems
Enforcement procedure
The Commission relies heavily on the complaint procedure to warn it to cases of noncompliance.^As far as environmental sector is concerned, the issue of public apathy is
not very worrying with the number of complaints relating to environmental matters increased by one third since 1991.41 It is actually to detect genuine and serious noncompliance complaints that become problematic. The investigation of high number of
complaints against one Member State may divert the Commission's focus from other
Member States which may have even worse levels of compliance, bearing in mind that
properly. The Commission does not have the information it needs for a proper assessment.. .Member States do not always supply it and this does not make the performance of the Commission's tasks under the Treaty any easier". 38 See ENDS Report 230 March 1994 at p 38 39 See G.Stuart at p 163-164 -Article 169 is reactive and thus does not prevent environmental harm from being committed. 40 See fh 36 -10* Report to the European Parliament on commission monitoring of the application of Community Law 1992, p 40 (OJ 1993 C233). In 1992 the Commission were alerted to 1545 suspected infringements across every sector of its competence. Of these, 1185 resulted from the Commission's complaint procedure, by which individuals and interest groups are able to inform the Commission of infringements without expense or formality. A further 282 cases were detected by the Commission itself, 33 cases resulted from petitions and 45 from Parliamentary questions. 41 See G.Stuart at p 161 10
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This involves a detailed examination of the relevant national texts in order for the degree of compliance to be assessed. This requires extensive knowledge of national legislative and administrative systems and may entail cross-referencing multiple
instruments. Furthermore, Directives may introduce new and unfamiliar
environmental concepts, which are open for different interpretation and definition. The problem of verification worsens due to a lack of co-operation by Member States.42
Apart from that, it is a common practice amongst Member States to simply transfer
the wording of a Directive into national instruments, thereby satisfying the formal requirements of implementation.43 Such action fails to take into consideration of the Member States' own legal and administrative systems that in practice, the Directive might be unworkable.
However, it is not within the scope of this research to include all the possible steps to
improve the EU enforcement regime.44
42
See G.Stuart at p 161 - The Commission requests diagrams and tables from Member States to enable it to compare and cross-refer multiple instruments of implementation, but this request is often ignored. 43 Seem 40 44 See G.Stuart for a further discussion on the problems of EU environmental directives in combating non-compliance and the possible steps to improve the EU environmental regime.
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2.4.2. Lobbying
Lobbying is the lifeblood of any political system. Without lobbies, politics is either
irrelevant or dead. Lobbies indicate that the outcome of a political process is taken
seriously enough to justify the investment of energy and money in trying to influence
the outcome.45Interest groups, companies, foreign governments, citizen groups and business organisations have all contributed richly to the EU environmental decision-
making process.46 In recent years, lobby, has become more numerous and commercial.47 Pressure groups have developed more sophisticated communication methods and lobbyists for a whole range of interest have become a burgeoning and more visible presence in Westminster. For many commentators, British politics has
developed the * sleaze factor* in lobbying.
In recent years, rising concern over the influence of outside interests in Parliament has
MPs such as John Browne and Michael Grylls. Grylls for example refused to disclose
See Van Schendelen - National Public and Private EC Lobbying (1993) Dartmouth at p 7 See Sebastian Berry- Lobbying - A need to regulate? at p 97 in Jones. The extent of MPs' financial relationships with professional lobbyists and other interests has grown since the mid-1980s. By 1991, 384 MPs held over 500 directorships and 450 consultancies between them. Some industries are particularly well represented among the ranks of directorships and consultancies. These include the fur trade, the tobacco industry, alcohol companies and drug companies. Drug companies, for example, have direct financial links with 22MPs. 47 See Rees Laurence - Selling Politics (1992) London: BBC Book on a further discussion of the establishment of professional political consultant like Bell Political Consultant. 48 See Panorama -December 1996 on "Money for Question" which involves MP Neil Hamilton and Mohammed Al-Fayed. Also on the professional lobbyist, the so-called political consultants like Bell Political Consultancy and lan Greer Associates. The programme shows how industrial and business lobbyists play a major role in a legislative process in protecting their interests.
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