10 - 25 Years of the Aarhus Convention

It was 25 years ago, on 25 June 1998, that the Aarhus Convention was opened for signature. The UK was among the states that signed that day. 

As noted in the first blog, its influence on the environmental law of the UK has been profound. On the 25th anniversary a search of Westlaw returns 219 UK cases that refer to the Convention: 16 in the Supreme Court, 51 in the Court of Appeal, 104 in the High Court of England & Wales and 30 Scottish court decisions.  

When one thinks of the Aarhus Convention and the UK it is the issue of the costs of environmental proceedings that first comes to mind. But the influence of the Convention on the access to environmental information is equally, if not more profound. The Convention begat the Environmental Information Directive and in turn the Environmental Information Regulations 2004 (“the EIR”). These have had a hugely important role in increasing access to environmental information. The Tribunals in determining appeals under the EIR regularly make direct reference to the Convention itself. 

The truth is that the UK has not had an easy relationship with the Aarhus Convention. This has been so from the outset. The UK made a declaration upon signature (confirmed upon ratification) to the effect that “The United Kingdom understands the references in article 1 and the seventh preambular paragraph of this Convention to the 'right' of every person 'to live  in an environment adequate to his or her health and well-being' to express an aspiration which motivated the negotiation of this Convention and which is shared fully by the United Kingdom. The legal rights which each Party undertakes to guarantee under article 1 are limited to the rights of access to information, public participation in decision-making and access to justice in environmental matters in accordance with the provisions of this Convention." 

I still recall the first time I received instructions on this strange new Convention. I am not afraid to admit I had not heard of it. This was back in the mid-2000s shortly after ratification by the UK. The issues at that time were focussed on costs. It was DEFRA who instructed me on that occasion. And since that time, I have acted for the UK in a number of cases brought before the Compliance Committee in Geneva: ACCC/C/2010/45; ACCC/C/2010/53 (Edinburgh Tram) ACCC/C/2011/60; ACCC/C/2011/61 (Crossrail); ACCC/C/2012/77 (Nuclear NPS); and ACCC/C/2014/100 and 101 (High Speed 2). I am currently acting for the UK Government (with Nick Grant) on the Brexit Communication to the Compliance Committee (ACCC/C/2017/150) and the Communication on Free Trade Agreements (ACC/C/2017/194).  

There have now been 200 communications made to the Compliance Committee since it was set up: https://unece.org/env/pp/cc/communications-from-the-public. No less than 47 of those have been in relation to the UK! Given that there are (now) 47 Parties to the Convention that sounds like a very poor record. But there are a number of mitigating circumstances. 20 of those communications have been held to be fully or partly inadmissible at the initial filter stage. Moreover, a number of communications that passed that initial filter have resulted in the complaints made against the UK not being upheld: see for example the High Speed 2 Communication (in which I appeared for the UK with Jacqueline Lean).  

So for me the number of communications made cannot itself be seen as any sort of reflection of the UK having the worst record on compliance issues of the Parties. Frankly, it is quite clear when one looks at the list of Parties to the Convention that it is not.  

The reality is that the environmental NGO sector in the UK is very active and has found the Convention a very useful tool in campaigns for changes to be made to our environmental law. There is much to be said for this. But I do recall listening many years ago to the first chair of the Committee, Mr. Veit Koester, speaking at a seminar at Landmark Chambers and warning UK NGOs and individuals against over-use of the Committee’s procedures. Why? Because it simply did not have the resources to deal with too many cases.  

The Committee has had 79 meetings since it started. The most recent between 13 – 16 June 2023 held an open session to celebrate the 25th anniversary. Its business is by no means confined to hearing communications.  

As the Convention enters its 26th year, both it and its enforcement mechanisms, face some real challenges. The Compliance Committee is woefully under-resourced. Its secretariat is tiny. The Committee itself is made up of unpaid volunteers. The time that the Committee is now taking to make decisions on communications is far too long.  So, to take the Brexit Communication as an example: 

1. 31 October 2017 – communication made 

1. 5 January 2018 – communication held admissible 

1. 29 June 2018 – UK’s response to the communication filed 

1. 14 September 2022 – hearing held in Geneva 

1. The Committee’s decision is still awaited. 

There are other examples of very serious delays in the processes. That Communication was made when the Great Repeal Bill (as it was called) was still making its passage through Parliament. By the time a decision is made by the Committee the Bill will have been part of our law for over 5 years with the reality of Brexit having been with us for over 3 years. The HS2 Communication was affected by similar delays. This raises serious issues about the efficacy of the Compliance Committee in terms of remedies and providing effective protection of public rights, as well as the ability of the public to challenge decisions falling within Articles 6 and 7 of the Convention. It is difficult to square this reality with the aims and objectives of the Convention. 

There are other serious challenges that lie ahead. In “A Brave New World: The Aarhus Convention in Tempestuous Times”  (Journal of Environmental Law, Volume 35, Issue 1, March 2023, Pages 161–166) the current chair of the Compliance Committee, Professor Áine Ryall, looks at new significant developments within the Aarhus framework concerning the protection of environmental defenders, the impact of the pandemic and the application of the Convention during armed conflict. We hope to cover some of these topics in future blogs.  

On 26 June 2023 the Green Alliance think tank held a seminar “The Aarhus Convention 25 years on: has it delivered environmental justice?” chaired by The Rt. Hon. Lord Carnwath of Notting Hill, former supreme court justice and associate member, Landmark Chambers. It was, of course, Lord Carnwath who was the first Judge in the UK to refer to the Convention.: see R. (Burkett) v Hammersmith and Fulham LBC (Costs) [2005] C.P. Rep. 11 (see 1 – Welcome to the Aarhus Blog). 

Environmental law is far more important today than it was in 1998. Its profile is much higher. Resort to environmental law on matters such as the climate is on the increase. The Convention remains as relevant as it ever was. Perhaps more so. But there are real challenges that lie ahead. So, on its 25th anniversary it is good to pause reflect on the impact that the Convention has already had both in the UK and beyond. But it is also legitimate to raise concerns about the future challenges that lie ahead. 

Authors:
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC).    She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.