July 2023
The Environmental Rights Bill, proposed by a number of environmental NGOs, would enshrine the right to a clean, healthy and sustainable environment in English law for the first time, supporting that right with a right of access to environmental information, and rights to participate in environmental decision-making and challenge environmental decisions in court.
The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was, when it was signed in 1998, an inspirational and potentially radical innovation in environmental law. Despite UK ratification in 2005, its three pillars (on access to information, public participation in environmental decision-making and access to justice in environmental matters) have never been fully implemented in UK law. These rights are, at best, included in patchy legislative and common law provisions – and those patchy rights that we have taken for granted have been eroded and remain at risk.
If adopted, the Environmental Rights Bill would be an innovation as significant as the Aarhus Convention. It provides, in English law, for a right that is recognised in Aarhus and is increasingly orthodox around the world, that is the right to a healthy environment. It then seeks to enshrine in a systemic way the three interconnected pillars of the Aarhus Convention. As well as providing rights to everybody, the significance of the Bill lies in its detail - not in terms of precise prescriptions of what decision-makers must do on every occasion, but in the sense of clear instructions on the things that those with power must attend to. The three Aarhus pillars are hard to make a reality, and demanding care through law can make a difference.
Part I of the Bill places the right to a clean, healthy and sustainable environment firmly in national law. It is unlawful for public authorities to act in a way which is incompatible with that right, with authorities under a positive obligation to have due regard to the right when exercising their functions. Part I is explicit in its application to environmental obligations under the Environment Act 2021, including in meeting environmental standards and giving effect to environmental improvement plans.
The Bill is aimed at effective implementation of the Convention’s provisions on access to information, public participation and access to justice (Parts 2, 3 and 4 respectively). It builds on Aarhus rights to address substantive gaps in current UK law and policy and embraces evolved understandings of Convention rights as articulated by Aarhus institutions.
Transparency and accountability are at the heart of the Bill’s provisions. Taking Part 3 on public participation as an example, public authorities must act compatibly with a right to meaningful public participation (clause 9(1)) and all that entails. For instance, in relation to acts of relevant public authorities, proposals put to consultation must include an explanation of why alternatives to a proposal were rejected, “including, in particular, all and any information relied on which is not otherwise in the public domain” (clause 9(2)(c)), and public authorities must give “candid reasons for rejecting public suggestions or view that enjoy significant support” (clause 9(2)(d)). Similar obligations apply to public consultation on “relevant legal provisions” (including Acts of Parliament under clause 11(1) of the Bill).
In addition to provisions on the much-litigated area of costs in judicial review, Part 4 on access to justice requires public authorities to act, at all times “to further the right of access to justice in environmental matters” (clause 13(4)) and, radically, imposes on obligation on the Secretary of State to publish proposals for establishing a system of local environmental tribunals to consider complaints under the Act.
The legal protection of rights requires openness, inclusion and legal and political accountability even when those values are inconvenient or alternative perspectives unwelcome. These values most matter when there are things that we really want to do (building houses or building renewable energy infrastructure, let alone constructing airports and coalmines). When inclusion is at the discretion of those with power (government and corporate decision-makers), even if they agree that in principle the Aarhus rights are significant, nobody in particular has a right to insist on them.
Better law will not on its own create a participatory and inclusive culture, but law matters both in the provision of rights and in the setting of parameters of quality. Legislation like the Environmental Rights Bill will count at big moments of national decision-making and, perhaps as importantly, in the day-to-day routines through which environmental ambition succeeds or fails, and through which we shape a rich environmentally democratic culture.
Professor Carolyn Abbot, University of Manchester
Professor Maria Lee, University College London
Follow: @MariaLeeLaw, @UCLLaws and @law_uom
The opinions expressed in this blog are held by the authors and not necessarily those of the wider Link membership.
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