This morning, the seventh Meeting of the Parties to the Aarhus Convention (a UN environmental rights convention) will adopt a number of Decisions detailing how the UK is failing to comply with its provisions. The UK will also be asked to provide a phased action plan by 1 July 2022 setting out how it intends to make legal action more affordable for the public.
The Aarhus Convention provides us all with important environmental rights, including the right to access information held by public authorities, the right to participate in decision-making and the right to challenge unlawful actions by public bodies in the courts. These are often called the “three pillars of Aarhus’’: the right to know, the right to engage and the right to challenge.
The extent of these rights may be news to you – unfortunately the UK Government’s implementation of the Convention is piecemeal. The environmental information and right to participate in decision-making provisions of the Convention were transposed into UK law in 2005 through EU Directives. However, a third draft Directive on Access to Justice stalled in the European Parliament, rendering the third pillar of the Convention, even before Brexit, the weakest link of the three pillars. In a consultation challenge brought by Greenpeace in 2012, the High Court held: “the Aarhus Convention is itself irrelevant; it has only been incorporated into UK law to the extent that an EC Directive is involved’’. As such, the Convention enjoys the same somewhat precarious legal position as other Multi-national Environmental Agreements (MEAs) - it cannot be directly enforced before UK courts. Such Agreements are often referred to as “soft law” precisely for that reason.
The soft law around Aarhus provisions could get softer. As a result of Brexit, regulations transposing the first two pillars of the Convention were “rolled over” into a series of Statutory Instruments, to keep them on the statute book. As Statutory Instruments, these provisions are now vulnerable to amendment through a Parliamentary process that affords very limited scrutiny and opportunity for public participation.
Unfortunately, there are clear signs the current Government has some hostility to the environmental rights Aarhus embodies. The ‘Planning for the Future’ White Paper published in August 2020 proposed a major reduction in rights for members of the public to participate in planning decisions, and the watering down of environmental assessments. Whilst there are welcome suggestions that these damaging proposals may not be advanced as legislation, other worrying changes are progressing through the Judicial Review and Courts Bill. Clause 1 of the bill introduces Suspended Quashing Orders (allowing unlawful decisions to stand until quashed by court order at a future date) and Prospective Quashing Orders (which appear to quash unlawful decisions or conduct but make their past use valid). The judiciary is given little choice but to make these orders in certain circumstances and the bill raises serious questions around how these powers will work. For example, where the decision of a local planning authority is quashed under a SQO or PQO, will the developer still be able to go ahead with the proposal? It is feared that the bill will have chilling effect on potential environmental claimants because people will not be certain that if they go to court and win, they will get the remedy they sought.
The government is failing to uphold its Aarhus duties at even a most basic level. The network of environmental links in the UK (ELUK) submitted, and spoke to, a statement to this week’s Aarhus meeting, setting out the multiple ways in which Aarhus implementation is falling short in the UK.
The fragmented and piecemeal approach to Aarhus implementation affects your ability to obtain sewage outfall data from the Environment Agency, your ability to be heard in the planning process and undermines your right to go to court to challenge the lawfulness of Heathrow, HS2 or major highway near a World Heritage Site. These rights are pivotal to a functioning democracy but not for their own sake – we need them to collectively combat free-falling losses of wildlife and combat catastrophic climate change.
Link is developing a plan for a new Environmental Rights Act to comprehensively and consistently incorporate Aarhus Convention rights into UK law - providing certainty for individuals, community groups and environmental NGOs in their ongoing attempts to exercise these rights for the purpose of environmental protection. The Act would provide an opportunity to address the central aspiration of the Convention – the right of every person of present and future generations to live in an environment adequate to his or her health and well-being - as well as the procedural rights embodied in the third pillar of the Convention.
It is an ambitious ask. But I remember the Government saying a Marine Act was an impossibility and like all pieces of game-changing legislation – be it the Wildlife & Countryside Act 1981, the Climate Change Act 2008 or the Environment Bill – it starts with a groundswell for change.
Our environment is under attack – it is time give everyone access to legal tools to defend it.
Carol Day is legal consultant for the RSPB and co-Chair of the Link Legal Strategy Group. She is also a legal consultant for public interest law firm Leigh Day.
The opinions expressed in this blog are the author's and not necessarily those of the wider Link membership.
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