48 - The Shell protest case and the status of the Aarhus Convention

This blog takes a look at Shell UK Ltd v Persons Unknown [2024] EWHC 3130 (KB) (in which my Landmark colleagues Myriam Stacey KC and Joel Semakula appeared).

In that case Dias J granted final injunctions in favour of Shell and against unknown and named protesters who had taken direct action against them. The Court held that although the Aarhus Convention 2001 art.3(8) (“Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement”) had not been incorporated into UK law and could not be directly invoked in the UK courts, it was relevant to the question of whether, and to what extent, a proposed injunction against environmental protesters would interfere with their ECHR rights. It was thus a matter to which the court could have regard when deciding whether to exercise its discretion under the Senior Courts Act 1981 s.37 to grant an injunction against named or unnamed environmental protesters.

In the judgment at [6] the Judge explained that “A key issue the court has been invited to examine by the defendants is whether peaceful acts contrary to the law and the rights of others under the civil law are protected by the Aarhus Convention, and if so, in what way” and at [133] that “[p]art of the Aarhus argument that I must turn to, and as noted at the start of the judgment as reported by the Special Rapporteur, is that the simultaneous use of criminal and civil proceedings is oppressive and “excessive” use of the law”.

The judgment considers the role of the United Nations Special Rapporteur on Environmental Defenders. This office was established in October 2021 by a consensus of parties to the Aarhus Convention (see [12]-[14]).

The Aarhus analysis in the judgment is extensive running from [142] – [171] and is divided into 4 sections (1) Short history and context; (2) Status of Special Rapporteur; (3) Status of the Aarhus Convention; and (4) Discussion.

We may return to some parts of the judgment in later blogs but I want to draw attention to the analysis of the status of the Convention:

“(3) Status of the Convention

157. While the United Kingdom has withdrawn from the European Union, Brexit did not alter the United Kingdom’s ratification of Aarhus, and the UK remains a signatory and party. The question here is the Convention’s enduring status in domestic law. My focus is on the unincorporated parts of the treaty. There can be no argument but that due to their being unincorporated they cannot be directly applied in domestic law. But that is not an end to it. The question of the legal relevance of international treaties that are not incorporated was considered by the Supreme Court in R (SG) v Secretary of State for Work and Pensions [2015] 1 WLR 1449 (SC) (“SG”). Put shortly, in considering Convention rights under the ECHR, regard may be had to international law conventions. Lord Reed said:

“82 As an unincorporated international treaty, the UNCRC [United Nations Convention on the Rights of the Child] is not part of the law of the United Kingdom (nor, it is scarcely necessary to add, are the comments on it of the United Nations Committee on the Rights of the Child). The spirit, if not the precise language of article 3.1 has been translated into our law in particular contexts through section 11(2) of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009: ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, para 23. The present case is not however concerned with such a context. 

83 The UNCRC has also been taken into account by the European Court of Human Rights in the interpretation of the Convention, in accordance with article 31 of the Vienna Convention on the Law of Treaties. As the Grand Chamber stated in Demir v Turkey (2008) 48 EHRR 1272 [“Demir”], para 69,

“the precise obligations that the substantive obligations of the Convention impose on contracting states may be interpreted, first, in the light of relevant international    treaties that are applicable in the particular sphere”. It is not in dispute that the Convention rights protected in our domestic law by the Human Rights Act can also be interpreted in the light of international treaties, such as the UNCRC, that are applicable in the particular sphere.”

…

158. Relevance or applicability cannot amount to surreptitious incorporation. What cannot happen is for the common law to be used to incorporate otherwise unincorporated international conventions “through the back door” (A v Secretary of State for the Home Department (No 2) [2005] 1 WLR 414 (CA)). That is because the court cannot do what Parliament declined to do: give direct effect to an international treaty that remains, in its relevant provisions for these purposes, unincorporated”

…

160. The United Kingdom has not incorporated Article 3(8). However, in line with SG (Supreme Court), Demir (Grand Chamber) and the Vienna Convention on the Law of Treaties, I find that the Aarhus Convention:

(1) Is a relevant treaty in the sphere of environmental rights and protest about environmental issues;

(2) Is relevant to the interpretation of substantive rights under the ECHR, and particularly the rights under ECHR Articles 9, 10 and 11.

…

161. While it is submitted by the claimants that the court’s focus should strictly remain on the ECHR as it is incorporated into domestic law by the Human Rights Act 1998, that misses the point of the Supreme Court’s observations about relevance of unincorporated international treaties. While the United Kingdom has not incorporated Article 3(8), nor has it disowned it. This country continues to be a signatory to Aarhus. Thus, it must be taken to respect its terms and all of them save for any reservations. There is no reservation that has been brought to my attention in respect of Article 3(8). There is, of course, an understandable and material overlap between Articles 10 and 11 of the ECHR and Article 3(8) of Aarhus. The rights enjoyed under the ECHR are meaningless if states decline to protect them. What Article 3(8) of the Aarhus Convention achieves in the protection of the rights of protesters is to provide a poignant focus on the importance of ensuring that environmental defenders are not penalised, persecuted or harassed for exercising right in conformity with the Aarhus Convention. To repeat: the three pillars of Aarhus are (1) access to information (Articles 4-5); (2) public participation (Articles 6-8); and (3) access to justice (Article 9) in relation to decision-making around environmental matters. It can be said that protest is part and parcel of public participation in a wider understanding of decision-making that “may have a significant effect on the environment”, to borrow from Article 6(1)(b).

…

165. I accept that the terms of the Convention do not spell out a necessity for peaceful or non-violent action. This is a point made by Mr Forst in his UK mission report (“The fact that they cause disruption or involve civil disobedience do not mean they are not peaceful.”). That said, I can find no basis within Aarhus that authorises environmental defenders to deliberately break or flout the law or materially violate the lawful rights of others. This appears to extend to “civil disobedience”, should that be in deliberate breach of the law in the Rawlsian sense (A Theory of Justice, ibid., where what is being avowedly “disobeyed” is the law, for a claimed higher purpose, framed by those protesting often as the protection of human and environmental ecosystems, ecology and life). No Aarhus authorisation or exemption for unlawful acts has been brought to my attention, including for acts of civil disobedience in violation of national law. Contrast that with the putative case of arrests and prosecutions or the granting of an injunction to prohibit entirely peaceful protesters such as those who have regularly gathered with placards near to Shell without infringing any of Shell’s rights. Then it is strongly arguable that Aarhus would be engaged, with possible breaches of Article 3(8). I do not rule on that scenario as I have not been invited to, the situation not arising here. However, in cases of Aarhus breach, the mechanism is for the Special Rapporteur to bring the concern to the attention of the national government through a letter of allegation, and if not satisfied with the response, or if none were forthcoming, to refer the matter to the Convention’s Compliance Committee 

…

167. As to legal principle, the Aarhus Convention is not and cannot be determinative of these claims. However, I am persuaded, and find, that the substance of the Convention is relevant to the court’s assessment of interferences with the Convention rights of protesters under the ECHR and proportionality analyses. It consequently has relevance for the court’s equitable discretion confirmed by section 37 of the Senior Courts Act 1981. I must explain what relevance means in this context. It is a matter for the court to have regard to in making its discretionary decision rather than a freestanding and independently justiciable right, Aarhus not having been incorporated. It is relevant to recognise, and I do, that the United Kingdom remains a party to an international treaty that obliges member states to guarantee the rights of public participation in decision-making and access to justice in environmental matters in conformity with the provisions of Aarhus Convention and ensure that those who act in such conformity are not penalised, persecuted or harassed.”

This blog post was written by James Maurici KC.

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Authors of the Aarhus blogs

– 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 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 is a planning and environment specialist. He has featured in many of the most high profile recent planning and environmental law cases, including R (Finch) v Surrey County Council [2024] UKSC 20; CG Fry v SSLUHC [2024] EWCA Civ 730 (due in the Supreme Court in early 2025); R (Clarke-Holland) v SSLUH [2023]EWHC 3140 (Admin) and R (Friends of the Earth) v SSLUHC [2023] EWHC 3255 (KB). 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); 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); 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); and various environmental litigation in the High Court and Court of Appeal for the NGO Rights: Community: Action. He regularly advises individual and NGO clients on Aarhus costs protection.