20 - Aarhus and Human Rights: an update

This blog tracks two recent developments in relation to Aarhus and human rights (see further Blog 12).

(i) Scotland

On 5 October 2023 the Scottish Government’s consultation on a new Human Rights Bill for Scotland closed.

Amnesty Scotland (linked here) has recommended:

“The Right to a Healthy Environment

Because the Right to a Healthy Environment isn’t covered by a treaty, the Scottish Government has proposed including it in the Bill. Current plans suggest the Government will use the definition of environment set out in the Aarhus Convention, the leading international agreement on environmental democracy. Amnesty supports the use of the Aarhus definition and have called on the Government to ensure the Convention’s preamble, and first two articles, are emphasised in the Bill to acknowledge that ‘adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself’ and ‘the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being.’ We are concerned that the proposals don’t include more detail on how victims of environmental rights breaches will access justice, particularly as this has been a systemic problem in Scotland and the UK, identified by the governing institutions of the Aarhus Convention. Given the urgency of the climate crisis, it is essential that the rights are immediately enforceable and are not considered to be subject to progressive realisation and maximum available resources and there must be no retrogression.

We have also called for recognition of the right to healthy and sustainably produced food and the right to adequate sanitation. Safe and sufficient water must address wastewater and pollution from sewage, agricultural discharge, and other sources, and the impacts of climate change on water.”

(ii) Strasbourg

As mentioned in Blog 12 the oral argument in case Duarte Agostinho and Others v. Portugal took place on 27 September 2023: see https://www.ejiltalk.org/climate-change-hearings-and-the-ecthr-round-ii/. This is one of the three climate change cases currently pending before the Grand Chamber (seven other cases have been adjourned pending the Grand Chamber’s decision in these cases). Hearings in the other two cases before the Grand Chamber, Verein KlimaSenorinnen Schweitz v Switzerland and Carême v. France, were held in March. The Aarhus Convention is relevant in these cases to an argument around liberalising the “victim” requirement in the European Convention. A further blog will follow when judgments are handed down in these cases. 

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.