Because it has signed the Aarhus Convention, the UK government has a legal duty to protect the public’s right to environmental justice – but it’s failing in its duty. Groups like the Kent Environment and Community Network have challenged this failure and stood up for the public’s right to environmental justice.
The Aarhus Convention places a legal duty on the UK government to protect the public right to:
- environmental information
- participation in decision making about environmental issues.
- easy and effective access to justice, if the rights to information and participation in decision making are denied
Environmental Information Regulations – the key to our right to environmental information
The Aarhus Convention has given rise to the UK’s Environmental Information Regulations (EIR). These are like the Freedom of Information Act, but they’re stronger and apply to the public right to information about environmental issues.
The Liberty Guide to Human Rights explains what environmental information is, in terms of the EIR:
“The definition of environmental information is set out Regulation 2 of the EIR. This description includes: Any information in written, visual, aural, electronic or any other material form on:
a) The state of the elements of the environment […], or
b) Factors, affecting or likely to affect the elements of the environment[…], or
c) Measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b), […]
e) Cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c). […]
As you can see, this is a very broad description. All information on land use planning, transport planning, housing development, agricultural or industrial development is likely to fall within the definition. The EIR implements a European Directive, and the European Court of Justice has ruled that Directive required that the definition of environmental information be interpreted as widely as possible.”
How to make an EIR request
Write to the public body who has the information you want. You can write directly to them, or you can contact them through a website called What Do They Know. The advantage of using What Do They Know is that the website will automatically post the answer, so it’s available to everyone who’s interested, not just to the person who made the request.
You can find out what to do if your EIR request is refused on the Liberty website.
UCV Plain Speaker has made a number of EIR requests.
Free legal advice on environmental justice issues
The Environmental Law Foundation is an organisation that helps the public claim their rights to environmental justice and take part in environmental decision making. They provide free legal advice about environmental justice issues.
UK has signed the Aarhus Convention but doesn’t uphold it effectively
But in 2010, the Working Group on Access to Environmental Justice, chaired by Lord Justice Sullivan, reported that the Aarhus Convention Compliance Committee had taken the UK to task for “failing to live up to its obligations under Aarhus.”
Things haven’t improved since then. The Public Participation Campaign exists to put the Aarhus Convention principles into practice. It runs a project with the snappy title “Making the Aarhus Convention Work for Civil Society” Their legal team will advise on questions relating to the Aarhus Convention and they run training programmes on how to use the Aarhus Convention Compliance Committee in cases where the government’s failed to protect the public’s right to environmental justice.
The EC places the UK among the bottom five Aarhus Convention member states in terms of legal costs and access to justice. Significant obstacles stand between the UK public and access to environmental justice in the courts.
The European Commission took the UK government to court for Aarhus Convention failings
In April 2011, the European Commission announced that it was taking the UK Government to the European Court of Justice (ECJ), since the Government had failed to act on its final written warning in 2010.
Writing in April 2011, the Environmental Information and Regulation Centre explained that the EC is empowered to do this because the Aarhus Convention has been incorporated into European Union law:
“The Convention is given effect in the European Union (inter alia) by Regulation 1367/2006 of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p.13) applicable as from 17 July 2007.
The Convention also has its own compliance mechanisms and the Convention Compliance Committee has itself examined two complaints against the UK on the basis that environmental litigation in the UK is “prohibitively expensive”. It held that the UK is not compliant with this provision of the Convention given the cost of bringing environmental challenges before the UK courts.”
Public complaints that UK government is still not upholding the Aarhus Convention
In June 2012, the 37th meeting of the Aarhus Convention Compliance Committee considered three complaints that the UK Government was not upholding the Aarhus Convention.
One of these complaints is of particular relevance to Calderdale and Leeds City Region, given the lack of public participation in key environmental decision making bodies here. ACCC/C/2010/45 from the Kent Environment and Community Network alleges that the UK is not upholding several articles of the Aarhus Convention, and that the lack of public access to information, participation in environmental decision making and access to justice in environmental matters is made worse by
“the Local Government Act 2000, which did away with most committees in local government and introduced the ‘Cabinet System’: all the responsibility for a given topic is vested in a single portfolio holder…it is undemocratic and frequently abused.”
Unfortunately the Aarhus Convention Compliance Committee, considered the Kent Environment and Community Network case in June 2012 but did not uphold it.