5 - The Status of the Aarhus Convention in English Law in 2023

This blog will look at the status of the Aarhus Convention in English law. 

Introduction

The Aarhus Convention is an international treaty. It entered into force 30 October 2001. The UK ratified it on 23 February 2005.  

International treaties have traditionally had restricted use in domestic law unless they have been incorporated into domestic law. 

This, of course, is a consequence of our strictly dualist system of law  

And is a result of two principles of “constitutional orthodoxy”, namely:  

(i) Domestic courts have no jurisdiction to construe or apply treaties which have not been incorporated into national law; that they are effectively non-justiciable; and  

(ii) Such treaties, unless incorporated into domestic law, are not part of that law and therefore cannot be given direct effect to create rights and obligations under national or municipal law. 

See e.g. R (SG) v Secretary of State for Work and Pensions [2015] 1 WLR 1449 (SC) and R (Spurrier) v SST [2020] PTSR 240 para 606. 

In relation to (i) above where it is nonetheless necessary to consider the proper construction of an unincorporated treaty the test to be applied by the Court is whether the view taken by the decision-maker is a tenable one: see R. (Friends of the Earth Ltd) v Secretary of State for International Trade [2023] EWCA Civ 14. 

Morgan v Hinton Organics

In Morgan v Hinton Organics (Wessex) Ltd [2009] C.P. Rep. 26, per Carnwath LJ on the Aarhus Convention: 

“For the purposes of domestic law, the Convention has the status of an international treaty, not directly incorporated. Thus its provisions cannot be directly applied by domestic courts, but may be taken into account in resolving ambiguities in legislation intended to give it effect ... Ratification by the European Community itself gives the European Commission the right to ensure that Member States comply with the Aarhus obligations in areas within Community competence (see Commission v France case C-239/03 (2004) ECR I-09325 [25]–[31])” 

Carnwath LJ also noted that the provisions of the Convention had been reproduced in various EU Directives, giving the examples of Environmental Assessment and Integrated Pollution Control. 

But the position, which was relatively straightforward back in 2009, has moved on from this in a number of ways. Most importantly in that (i) the Aarhus Convention in part incorporated into CPR; and (ii) we now have to account for Brexit. 

The status of the 3 pillars

The 3 pillars of the Aarhus Convention are: 

1. Access to information (Articles 4 and 5); 
2. Public participation (Articles 6 – 8); 
3. Access to Justice (Article 9). 

The status of each of these pillars in English law is now different. The status of the Aarhus Convention in domestic law is thus complex. Dealing with the pillars in reverse order. 

Pillar 1: Access to Justice 

Art. 9 of the Aarhus Convention is incorporated in part into domestic legislation in the form of the CPR: 

1. CPR 45.41 – 45: costs in relation to JR, statutory review, and s. 289 TCPA appeals [see also CPR 52.19A on costs in the Court of Appeal and Supreme Court Practice Direction 13 and the Criminal Justice and Courts Act 2015 Criminal Justice and Courts Act 2015 (Disapplication of Sections 88 and 89) Regulations 2017/100 reg. 2). Not applicable to private claims e.g., nuisance. 
2. CR54.6: JR claim forms. 
3. Practice Direction 25A—Interim Injunctions, para 5.3. 

This is the only example of the Aarhus Convention being directly incorporated into legislation of England & Wales. 

These rules apply to “Aarhus Convention claims” as defined by CPR 45.41(1) expressly requires Court to consider if the claim falls within the scope of Article 9 of the Convention: see e.g. R. (Lewis) v Welsh Ministers [2022] EWHC 450 (Admin). 

Pillar 2: Public participation

There is no domestic legislation directly seeking to incorporate Articles 6, 7 and 8 of the Aarhus Convention; 

But NB at EU level (see http://ec.europa.eu/environment/aarhus/legislation.htm) states: 

1. The Public Participation Directive 2003/35/EC provides for public participation with respect to formulating certain plans and programmes relating to the environment.  
2. Provisions for public participation in environmental decision-making are also found in a number of environmental directives, such as the Environmental Impact Assessment Directive 85/337/EEC and the Strategic Environmental Assessment Directive 2001/42/EC. 

Directive 2003/35/EC Art 2(2) required Member States ensure that the public is given early and effective opportunities to participate in the preparation and modification or review of the plans or programmes required to be drawn up under the provisions listed in Annex I; 

Annex 1 sets out: 

(a) Article 7(1) of Council Directive 75/442/EEC of 15 July 1975 on waste. 

(b) Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances. 

(c) Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources. 

(d) Article 6(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste. 

(e)Article 14 of Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste. 

(f) Article 8(3) of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management. 

A number of these provisions transposed into domestic legislation and are retained EU law. 

The Commission website referred to above also mentions the SEA Directive as giving effect to the public participation provisions in the Aarhus Convention.  

But the SEA Directive does not explicitly cite Aarhus in recitals, and it proceeded the Aarhus Convention entering into force. The SEA Directive transposed by the Environmental Assessment of Plans and Programmes Regulations 2004, and these are retained EU law. On the relationship between the Aarhus Convention and the SEA Directive see: 

1. R. (Buckinghamshire CC) v Secretary of State for Transport [2014] 1 W.L.R. 324 per Lord Carnwath “There is no reason to assume that article 7 and the SEA Directive are intended to cover exactly the same ground. The differences in wording are clear and must be assumed to be deliberate … The SEA Directive must be interpreted and applied in its own terms. If this falls short of full compliance with the Aarhus Convention, it does not invalidate the Directive so far as it goes. It simply means that a possible breach of the Convention may have to be considered as a separate and additional issue.” 
2. The findings of the ACCC in ACCC/C/2014/101. 

Pillar 3: Access to information

In relation to the first pillar on information. The Environmental Information Regulations 2004 (“the EIR”) transpose the Environmental Information Directive 2003/4/EC. That Directive was itself was enacted to give effect to Pillar 1 of the Aarhus Convention: see further s. 74 of the Freedom of Information Act 2000 and the EIR at reg 20. The EIR are retained EU law.  

One sees in the ICO Guidance and also the case-law on the EIR in the FTT, UT and Higher Courts much reference to and reliance on the Aarhus Convention: see e.g. Department for the Environment, Food and Rural Affairs v Information Commissioner [2012] PTSR 1299 (CA) at paras. 10, 12 and 13 and R (Evans) v Attorney General [2015] 2 AC 1787 (SC) at paras. 22 and 185. 

The continuing influence of EU law

EU also a party to the Aarhus Convention. Before Brexit, there was the possibility of enforcement of Aarhus obligations via Commission infraction proceedings see e.g. Morgan (above) referring to this possibility and C-530/11 Commission v UK [2014] Q.B. 988 which is an example of this. 

What status does Aarhus now have in retained EU law? 

1. Retained EU law in the form of domestic legislation that transposed EU Directives and which Directives themselves gave effect to the Aarhus Convention. The EIR an example: see above; 
2. As noted by Carnwath LJ in Morgan various EU Directives have incorporated provisions of the Aarhus Convention. But Directives themselves (as opposed to transposing domestic legislation) generally not retained EU law unless they met the conditions set by s. 4(2)(b) of the EU (Withdrawal) Act 2018: see Harris v Environment Agency [2022] EWHC 2264 (Admin). 
3. There are various other European Regulations that are retained EU law and which specifically reference in their recitals the Aarhus Convention e.g.:  
   1. Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste;  
   2. Regulation (EC) No 166/2006 of the European Parliament and of the Council of 18 January 2006 concerning the establishment of a European Pollutant Release and Transfer Register and amending Council Directives 91/689/EEC and 96/61/EC;  
   3. Regulation (EU) 2015/757 of the European Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC;  
   4. Regulation (EU) 2017/1004 of the European Parliament and of the Council of 17 May 2017 on the establishment of a Union framework for the collection, management and use of data in the fisheries sector and support for scientific advice regarding the common fisheries policy and repealing Council Regulation (EC) No 199/2008;  
   5. Regulation (EU) 2018/956 of the European Parliament and of the Council of 28 June 2018 on the monitoring and reporting of CO2 emissions from and fuel consumption of new heavy-duty vehicles;  
   6. Regulation (EU) 2019/1021 of the European Parliament and of the Council of 20 June 2019 on persistent organic pollutants and  
   7. Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC. 
4. Pre-Brexit CJEU case-law binding on domestic courts up to High Court level, and CA and SC may only depart in limited circumstances. In Case C-240/09 Lesoochranarske Zoskupenie VLK v Ministerstvo Zivotneho Prostredia Slovenskej Republiky [2012] Q.B. 606 (“the VLK case” or “the Brown Bear case”) VLK – a Slovakian environmental association – sought to be a party to administrative proceedings re grant of derogations to the system of protection for species, such as the brown bear, under the Habitats Directive. They were refused. VLK appealed contending that Article 9(3) of the Aarhus Convention had direct effect via EU law and that they could rely on that article to establish a right to be joined to the administrative proceedings. Reference made to CJEU asking: is Art. 9(3) of the Aarhus Convention directly effective? The CJEU held: 
   1. The provisions of the Aarhus Convention are “an integral part of the legal order of the European Union”; 
   2. The CJEU had jurisdiction to interpret Art. 9(3) even though dispute in main proceedings not covered by any EU Directive transposing the Convention; 
   3. Art. 9(3) not directly effective “the provisions of article 9(3) of the Aarhus Convention do not contain any clear and precise obligation capable of directly regulating the legal position of individuals. Since only members of the public who meet the criteria, if any, laid down by national law are entitled to exercise the rights provided for in article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure”. 
   4. But nonetheless there was indirect effect: 
      1. Art. 9(3) “drafted in broad terms” “intended to ensure effective environmental protection”; 
      2. “ … the absence of European Union rules governing the matter, it is for the domestic legal system of each member state to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law, in this case the Habitats Directive …” 
      3. “ … the detailed procedural rules governing actions for safeguarding an individual's rights under European Union law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by European Union law (principle of effectiveness) …” 
      4. “It is ... for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by EU law ... in order to enable an environmental protection organisation, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law.” 

Where the Aarhus Convention if not incorporated what is its status? 

So for example in: (i) a despite about costs in a nuisance case (not subject to the Aarhus costs rules_;  or (ii) a case concerning issues of public participation. 

How, if at all, might the Aarhus Convention be relevant, notwithstanding the dualist orthodoxy: 

(1) As an aid to statutory interpretation? 

(2) In developing the common law? 

(3) As a relevant consideration in the exercise of a judicial (but not an executive) discretion? 

(4) Through legitimate expectation? 

(5) In human rights cases? 

(1) Statutory interpretation

There is a presumption of compatibility of domestic legislation with international law: see e.g. Assange v Swedish Prosecution Authority [2012] AC 471 (SC) where, at para 122, Lord Dyson said: “there is no doubt that there is a ‘strong presumption’ in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations”. 

That said where legislation is clear and unambiguous it must be given effect to irrespective of any international treaty obligations: see Salomon v Commissioners for Customs & Excise [1967] 2 QB 116 (CA). 

In Morgan v Hinton Organics per Carnwath LJ at para. 22 in respect of the Aarhus Convention that “For the purposes of domestic law, the convention has the status of an international treaty, not directly incorporated. Thus its provisions cannot be directly applied by domestic courts” albeit that it could (see further below) “be taken into account in resolving ambiguities in legislation intended to give it effect”. 

(2) Developing the common law 

Unincorporated treaties may have a bearing on the development of the common law: R v Lyons [2003] 1 AC 976 (HL): 

1. Developments of the common law should ordinarily be in harmony with the United Kingdom's international obligations: A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221 (HL); 
2. Unincorporated treaties may also be used to resolve ambiguities in the common law: Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 (HL) 
3. But common law cannot be used to incorporate treaties “through the back door”: A v Secretary of State for the Home Department (No 2) [2005] 1 WLLR 414 (CA). 

It should be noted that the Aarhus Convention approach to costs been cited and relied on by Courts in cases outside of environmental context: see e.g. R. (Compton) v Wiltshire Primary Care Trust [2009] 1 W.L.R. 1436. 

(3) Judicial discretions  

In Morgan it was said that:  

• “the principles of the convention are at the most something to be taken into account in … exercising discretions” 
• “The principles of the convention are at most a matter to which the court may have regard in exercising its discretion” 

There are limits to this. In Venn v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 2328: Convention protection under CPR at that time limited to JRs only not statutory reviews. A deliberate legislative decision. So costs limits in CPR inapplicable. Should court exercise discretion to make a PCO to cover a statutory review? “it would not be appropriate to exercise a judicial discretion so as to side-step the limitation (to applications for judicial review) that has been deliberately imposed by secondary legislation. It would be doubly inappropriate to exercise the discretion for the purpose of giving effect under domestic law to the requirements of an international Convention” 

(4) Legitimate expectation 

Lord Kerr in SG said “[t]he proposition that the doctrine of legitimate expectation can generate a right to rely on the provision of an unincorporated treaty in the interpretation and application of domestic law is, at least, controversial.” 

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 is the modern starting point for such arguments. This is not the place to trace fate of Teoh both in Australia and in our Courts. This remains a controversial idea. 

(5) Human rights cases 

In considering Convention rights regard may be had to international law conventions: see the judgments of the Supreme Court in SG. Thus Lord Reed noted:  

“As the Grand Chamber stated in Demir v Turkey (2008) 48 EHRR 1272 , 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 [United Nations Convention on the Rights of the Child] UNCRC, that are applicable in the particular sphere.” 

Lord Kerr sought to go further in SG and argued based on various dicta of Lord Steyn that human rights treaties are as an exception to the general rule directly enforceable in UK law. 

See also:  

1. Venn (2) CO/2996/2016: This was a JR of the Ministry of Justice on the basis that it acted unreasonably in not having amended Aarhus Costs rules to cover statutory reviews following what was said in Venn in the Court of Appeal (see above). It was a non-EU case. Ouseley J (15 August 2016) refused permission on papers and marked totally without merit. Judge said that international conventions if unincorporated are not justiciable and any reliance on Article 6 ECHR was misconceived.  The Court of Appeal dismissed an appeal. 

1. Austin v UK Application no. 39714/15: on the use of Aarhus Convention in context of a Convention claim; failed in that case. The ECtHR left open the question of whether there could in principle be an ECHR basis for affording a claimant costs protection in private law environmental litigation. 

There are now a number of references to the Aarhus Convention in the Strasbourg jurisprudence e.g. Demir v Turkey see above;  Taskin v Turkey 46117/99; Okyay v Turkey 36220/97; Ecodefence v Russia 9988/13; Ecoglasnost v Bulgaria 31678/17 and Atanasov v Bulgaria 30765/08. 

The status of decisions of the ACCC in domestic law

In Walton v Scottish Ministers [2013] P.T.S.R. 5 at para. 100 Lord Carnwath referred to a decision of the ACCC. He said “[a]lthough the Convention is not part of domestic law as such (except where incorporated through European Directives), and is no longer directly relied on in this appeal, the decisions of the Committee deserve respect on issues relating to standards of public participation.”  

Is this correct? Does it risk incorporation via the backdoor? Also is it potentially dangerous as ACCC not a Court – does not apply Court procedures … 

Other domestic cases cite ACCC decisions including Venn (above) and R. (Royal Society for the Protection of Birds) v Secretary of State for Justice [2017] EWHC 2309 (Admin). See though R. (Evans) v SSCLG [2013] EWCA Civ 114 and R. (Evans) v Attorney General [2014] Q.B. 855 in the context of the ACCC views on Wednesbury.  

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.