22 - Aarhus Basics No 2: The First Pillar of the Aarhus Convention

It has been eight long months since the first Aarhus Basics blog post, and barely a day has passed where someone hasn’t approached me in the street asking when the next one will land. But worry not, dear reader: the second introductory blog to Aarhus is finally here, meaning that Christmas has come ever-so-slightly early.

Today on Aarhus Basics we are looking at the First Pillar of the Aarhus Convention. A catchy title: with a hint of mystery. For does the prefix not imply more than one Pillar?

It does indeed. There are three pillars of the Aarhus Convention: a triptych of legal rights. Three Pillars: (whispers) endless possibilities.

Those Three Pillars are as follows:

1. Access to information,
2. Public participation,
3. Access to justice in environmental matters.

Much like The Fast and the Furious, 2 Fast 2 Furious, and The Fast and the Furious: Tokyo Drift, the Three Pillars of the Aarhus Convention should, first and foremost, be considered as equal parts of a coherent whole. But – again with uncanny similarity to the first three Fast films – the Three Pillars each have a distinct personality, and distinct reasons to go back to them individually.

The First Pillar is all about information.

Where did the First Pillar come from? Those Aarhus drafting elves drew heavily on Council Directive 90/313 on the freedom of access to information on the environment. However, the First Pillar went beyond that Directive, and so the European Union replaced it by Directive 2003/4 of the European Parliament and the Council on public access to environmental information, prior to ratifying the Convention. That is how it found its way into our domestic legal regime via the EIR Regulations.

The First Pillar is governed by Articles 3, 4 and 5 of the Convention, primarily the latter two:

• Article 4 (Access to environmental information) sets out the general right of the public to gain access to existing environmental information on request.
• Article 5 (Collection and dissemination of environmental information) sets out the duties of states parties to collect and disseminate information of their own initiative.

Article 4(1):

• Requires a request for environmental information: ask and ye shall receive.
• The motive for the request is irrelevant. You may have no interest at all in the environment. You may actively hate it. You are still entitled to your environmental information.
• Actual information needs to be given- not a summary.
• Information is to be provided in the form requested (Communication ACCC/C/2008/24 (Spain): in that case, Spain was in breach of the Convention where it provided the information in paper form which attracted a charge: it had been requested in CD-ROM format). (I await the outcome of my complaint to the ACCC that the full Environmental Statement I sought was not provided in the requested rhyming style of “’Twas the night before Christmas”.)
• Time limits: the information must be provided as soon as possible after request is submitted, and in any event within a month: ACCC/C/2008/24 (Spain).

• There are various exemptions in Article 4(3) and (4), which may be familiar from the EIR Regs:
• The public authority does not hold the requested information,
• The request is manifestly unreasonable or formulated in too general a manner (perhaps in the case of my Environmental Statement, specifying the exact rhyming style was too restrictive: both practically and creatively),
• The material is in the course of completion, or internal communications of public authorities where such an exemption is provided for in national law or customary practice ‘taking into account the public interest served by disclosure’ (Though note that in ACCC/C/2010/53 (United Kingdom), raw data not yet subject to data correction fell to be disclosed),
• Confidentiality, IP rights, the course of justice, personal data, breeding sites of rare species etc.

Article 5:

• This is the ‘active’ environmental information requirement.
• It is a highly prescriptive provision: including measures to ensure that public authority information systems are effective in providing publicly accessible information, including the progressive provision of information on ‘electronic databases which are easily accessible to the public through public telecommunications networks’: Article 5(3).
• Article 5(7) requires the authority to publish facts and analysis of facts which the government considers relevant and important in framing major environmental policy proposals. Again, pretty useful stuff.

These requirements are implemented domestically through the FOIA and EIR Regimes. I hear there is a really good chapter in a practitioner textbook on this…

So there you have it, reader: the Basics of the First Pillar.

One down, two to go… Same time, same channel.

Aarhus snack bites

Peckish for a bit more Aarhus?

In other news, eagle-eyed followers of COP28 may have spotted a reference to Aarhus in the UNECE’s press release on the Critical Raw Materials discussions. The press release highlighted the Special Rapporteur on environmental defenders, elected under the Aarhus Convention, as a positive example of international law responding to the environmental challenges of the day.

Yesterday commenced the four-day Aarhusathon that is the Eighty-first meeting of the Aarhus Convention Compliance Committee (12-15 December). The Brexit case (in which James and Nick act for the UK) is on the menu, with preparation of the Committee’s draft findings.

Will we need emergency legislation that requires courts/newspapers/individuals down the pub to conclusively assume for all purposes that Brexit complies with the Aarhus Convention? Watch this space!

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.