July 2023
This analysis was first published on Lexis+® UK on 3 July 2023 and can be found here (subscription
required).
Twenty-five years ago this summer in the Danish city of Aarhus, the UN brokered a ground-breaking international agreement linking human and environmental rights, acknowledging that we owe an obligation to future generations and recognising the relationship between people and governments. For governments it requires accountability, transparency and responsiveness. For the public, it guarantees access to environmental information, meaningful public participation in how projects, policies and laws affecting the environment are developed and implemented and access to justice where public bodies fail to uphold their environmental obligations. It was ahead of its time.
Yet a quarter of a century on, the trust between the state and the public on nature and climate in the UK is almost at rock bottom. The principles of the Aarhus Convention seem to have fallen by the wayside in UK politics and in our statute book, with the UK’s approach to human rights and its credibility on the environment in doubt.
The public are rightly worried—that air and water pollution and lack of access to nature are affecting people’s health, quality of life, and even the length of their lives. Poor air quality is considered by the government to be ‘the largest environmental risk to public health in the UK’. The annual mortality of human-made air pollution in the UK is equivalent to up to 36,000 deaths yearly, while the cost of health impacts reach up to £20bn. Water pollution is one of the country’s most contentious issues with 389,000 discharges of raw sewage into UK waterways in 2022 and known harmful chemical cocktails found in 81% of rivers. It is well-known that local access to nature improves people’s mental and physical health yet one in three people in the UK have no nature near their home and disadvantaged communities are twice as likely to be nature-poor.
Despite growing public concern at the degradation of the environment, the UK government has always demonstrated a piecemeal approach to Aarhus implementation. Article 1 of the Convention recognises that in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to their health and well-being, each Party shall guarantee them procedural environmental rights. On ratification, the UK was the only Party to declare this right to be merely ‘aspirational’, effectively denying its relevance to people in the UK.
The UK repeated that sleight again when it came to the recent UN Human Rights Council Resolution 48/13 on the human right to a clean, healthy and sustainable environment although in July 2022 it did vote in favour of UN General Assembly Resolution 76/300 which recognised the right as a human right. Not a single country voted against the Resolution (161 voted in favour, eight abstained).
The Environmental Rights Bill has been developed to demonstrate that a human right to a healthy environment is not only enforceable but deliverable. The Bill imposes a new duty on relevant public authorities to act compatibly with the right to a healthy environment in their decision making, thus taking the same approach as the Human Rights Act 1998 does to Convention rights. Relevant public authorities must, in the exercise of their functions, also have due regard to the need to secure the right to a clean, healthy and sustainable environment for everyone. This phrase has been used in the light of the weight afforded to similar wording in other legislation including the Equality Act 2010. The Bill also seeks to implement Article 3(8) of the Aarhus Convention, which aims to prevent those exercising their environmental rights to do so free of harassment, persecution and penalisation.
This may have implications for some provisions in recent Acts of Parliament, including the Public Order Act
2023, which seeks to curtail protests on environmental issues. Finally, given the inconsistent and patchy implementation of the Convention’s provisions since ratification in 2005, the Bill also seeks to put the participatory rights of access to environmental information, public participation in decision making and access to justice into primary domestic legislation. This provides the government with an opportunity to redress deficiencies in implementation, including the requirement to address the prohibitively high costs of legal action.
The Bill has the backing of a range of environmental and health organisations, including the RSPB, Friends of the Earth, ClientEarth, and Wildlife and Countryside Link. It will form part of the latter’s ‘Nature 2030’, a set of policies proposed for inclusion in election manifestos launching on 18 July 2023.
The next government has a vital role to get our house in order on the environment and ensuring the principles of Aarhus are finally adopted into UK law, through an Environmental Rights Bill or similar legislation, will be a major litmus test of success.
The Environmental Rights Bill can be found here.
Follow: @Natures_Voice, @friends_earth and @matrixchambers
The opinions expressed in this blog are held by the authors and not necessarily those of the wider Link membership.
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