Implications for the UK of the New Standing Test…

In Verein Klimaseniorinnen Schweiz and Others v Switzerland the Strasbourg Court consciously and expressly expanded the former understanding of who may qualify under article 34 of the European Convention on Human Rights (“the Convention”) to bring an application to the European Court of Human Rights in Strasbourg (“the Strasbourg Court”).

The effect of its judgment is that “associations” in cases concerning climate change can bring claims before the European Court of Human Rights (where certain conditions are met). At the same time, the Court rejected the applications of each of the individual members of the association. It did so on fairly conventional grounds that each individual had failed on an evidential level to establish that they were victims.

How this new approach to standing will affect the ability of associations to bring a human rights claim in the UK is addressed below. Two immediate conclusions arise:

The case will not for the foreseeable future affect standing in human rights claims outside the climate change, or at least the environmental context: The ECtHR expressly stated that its expansion of standing before the Court was limited to cases concerning human rights and climate change.
Its ruling is not easy to ignore for UK judges. One possible consequence is that the domestic victim test under section 7 of the Human Rights Act 1998 is now incompatible with the Convention. That raises the intriguing possibility that a court may have to “read down” section 7 of the Human Rights Act itself pursuant to section 3 of the HRA 1998.

Strasbourg Court Rules on Standing

Article 34 of the Convention provides:

The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right:

Article 35(3) provides:

The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: … (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits.

Individuals’ Standing

In Verein Klimaseniorinnen Schweiz and Others v Switzerland, applications were brought both by five elderly women as individuals and by an association (of which they were all members). On the applications of the individuals, the Court reiterated well-trodden principles (my emphases):

487.  In sum, the Court finds that in order to claim victim status under Article 34 of the Convention in the context of complaints concerning harm or risk of harm resulting from alleged failures by the State to combat climate change, an applicant needs to show that he or she was personally and directly affected by the impugned failures. This would require the Court to establish, having regard to the principles concerning issues of proof set out in paragraphs 427 to 430 above, the following circumstances concerning the applicant’s situation:

(a)  the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and

(b)  there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm.

488.  The threshold for fulfilling these criteria is especially high. In view of the exclusion of actio popularis under the Convention, as discussed in paragraphs 483 to 484 above, whether an applicant meets that threshold will depend on a careful assessment of the concrete circumstances of the case. In this connection, the Court will have due regard to circumstances such as the prevailing local conditions and individual specificities and vulnerabilities. The Court’s assessment will also include, but will not necessarily be limited to, considerations relating to: the nature and scope of the applicant’s Convention complaint, the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability.

At [531] the Court held that while the applicants belonged to a group that was particularly susceptible to climate change, that was not of itself enough to grant them victim status. It was necessary to establish in each case a particular level and severity of adverse consequences affecting the applicant. In essence, the court found that none of the individual applicants had, on the evidence presented, met these tests, and so none were held to have standing.

This is an approach to victim status which is restrictive and will no doubt be adopted by UK Courts. The “especially high” threshold was not (on the evidence), met by elderly people alleging the effects of heatwaves. Perhaps it could most obviously be met by people facing an imminent risk to their home by flood risk related to climate change.

Association Standing

The ECtHR held that even though individual members of the association had not provided evidence to meet the high threshold, the association of which they were part did have standing. It held at [498]-[500] (my emphases):

498.  The specific considerations relating to climate change weigh in favour of recognising the possibility for associations, subject to certain conditions, to have standing before the Court as representatives of the individuals whose rights are or will allegedly be affected. Indeed, as the Court noted previously in Asselbourg and Others and Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği (cited above, §§ 41 and 43), it may be possible for an association to have standing before the Court despite the fact that it cannot itself claim to be the victim of a violation of the Convention.

499.  Moreover, the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context (see paragraph 489 above), speak in favour of recognising the standing of associations before the Court in climate-change cases. In view of the urgency of combating the adverse effects of climate change and the severity of its consequences, including the grave risk of their irreversibility, States should take adequate action notably through suitable general measures to secure not only the Convention rights of individuals who are currently affected by climate change, but also those individuals within their jurisdiction whose enjoyment of Convention rights may be severely and irreversibly affected in the future in the absence of timely action. The Court therefore considers it appropriate in this specific context to acknowledge the importance of making allowance for recourse to legal action by associations for the purpose of seeking the protection of the human rights of those affected, as well as those at risk of being affected, by the adverse effects of climate change, instead of exclusively relying on proceedings brought by each individual on his or her own behalf.

500.  However, similarly to what was observed above concerning the victim status of natural persons in this context (see paragraph 483 in fine above), the exclusion of actio popularis under the Convention requires that the possibility for associations to lodge applications before the Court be subject to certain conditions.

The Court makes clear that it is only expanding its rules on standing in respect of associations in cases concerning the human rights implications of climate changes. See also paragraph [501].

The Conditions to Associations’ Standing

The Court reiterated that an actio popularis (A purely public interest case) remains impermissible. That means that abstract complaints about the deterioration of the living conditions of people without considering its impact on a particular person or group remains inadmissible [500].

The Association’s argument as to its own standing was not in fact adopted by the Court. The Association argued (summarised at [306]) that

“… albeit it had legal personality, it should simply be seen as a group of individuals, every single member of which was an individual directly effected by the failures of the respondent State in a similar way to applicants nos. 2-5 (who are also members of the application association. Accordingly, this complaint was not an action popularis. The applicant association was not bringing an action in the general or public interest… the application association should be seen as a means enabling the physical persons to bring their complaint before the Court.”

The Court having rejected the standing of the individuals in question, the Association’s argument was not really viable. However, at [502] the Court established novel tests. It said that for an association to have locus standi to bring a claim related to climate change, the association in question must be:

(a) lawfully established in the jurisdiction concerned or have standing to act there;

(b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and

(c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention.

But “the standing of an association to act on behalf of the members or other affected individuals within the jurisdiction concerned will not be subject to a separate requirement of showing that those on whose behalf the case has been brought would themselves have met the victim-status requirements for individuals in the climate-change context as established in paragraphs 487 to 488 above.”

The Court found at [524]-[526] that the Applicant Association met those conditions and that article 8 was applicable to its complaint.

Partly Concurring, Partly Dissenting Opinion of Judge Eicke

Judge Eicke accepted that in principle the standing test under article 34 could be expanded since that is implicit in the principle of effectiveness [39]. Yet he took the view the Court should only do so where that was necessary because no individual could bring a case. He made the point that the individual applicants only failed to prove that they standing on the evidence: there was nothing intrinsically impossible about individuals being able to bring a climate change human rights claim before the Court. He therefore considered that expanding the standing provisions to allow an association to bring a claim was unnecessary (paragraph 4) and should have been left for “an appropriate future case” (paragraph 43).

Some Observations on the Court’s Expansion of Standing

Judge Eicke’s dissent is a more orthodox expression of a gradualist approach to the evolution of the law. Several commentators have joined in support of his incrementalism and have been critical of what is seen as overreach. However, what these commentators seem to ignore is the irreversibility of climate change.

It should be recalled that the Court was of the view–- very clearly–- that the failure of the Swiss government as long ago as 2020 (the case relates to facts at that point in time) to take measures to address human rights was a breach of Switzerland’s positive obligations pursuant to article 8 of the Convention. That breach comes in the context of what the Court recognised to be “the scientific evidence regarding the urgency of combating the adverse effects of climate change, the severity of its consequences, including the grave risk of their reaching the point of irreversibility”. That problem of the irreversibility of climate change puts it in a different context to most human rights violations. In this context, the longer the Court delays giving rulings, the more it reduces the chance of those rulings being effective in abating the human rights violations which it considered had already occurred by 2020.

If the Court had done as Judge Eicke thought it should, it would have been ignoring this important breach of human rights in favour of preserving the purity of its technical rules on admissibility. The net effect if it had found this claim inadmissible is that it would have ruled that every climate change application before it was inadmissible¹. That would have sent a clear message as to the importance of its admissibility procedures but would have said nothing about the substantive role of human rights law in protecting us from climate change.

The UK’s right-wing commentariat has confidently asserted that the Strasbourg Court should have prioritised procedural rigour over what the Court considered to be the scientific evidence of an irreversible threat to human rights. Yet it does not seem nearly so obvious as those commentators assume.

Implications for the UK

The interesting, and challenging, part of the judgment for UK courts is at paragraph [500] that an association can have standing “despite the fact it cannot itself claim to be the victim of a violation of the Convention”.

Section 7 of the Human Rights Act 1998 has not been interpreted in that way by UK courts so far. Section 7 provides:

7 Proceedings.

(1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.

…

(3)If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act

(7)For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

The UK approach is illustrated for example by R (Adath Yisroel Burial Society) v North London Senior Coroner [2019] QB 251 per Whipple J and Singh L.J in a Divisional Court which held that the Burial Society (what might have been “association” which managed the burials of a large proportion of the orthodox Jewish population), was not a “victim” in the meaning of section 7 HRA 1998.

R (Reprieve) v Prime Minister [2022] Q.B. 447 concerned the complicity of UK intelligence services in “rendition”. The proceedings were brought by Reprieve in the public interest rather than to vindicate personal interests and the Court held that Reprieve was not a “victim” able to argue there was an obligation to investigate the wrongs under article 3 ECHR. The Court held:

46.  To recognise the claimants as victims of an alleged violation of the procedural obligation under article 3 in this case would mark a significant development of the Strasbourg case law and, as such, is not a step that a domestic court should take. That said, we do not consider it likely that the Strasbourg court would recognise these claimants as victims of any violation of article 3. To do so would introduce a right of private individuals and organisations to bring claims in the public interest, something that the court has set its face against save in very limited circumstances.

47.  We conclude that the claimants are not victims of any violation of article 3 for the purposes of article 34 of the Convention. The effect of section 7(1) of the 1998 Act is that they cannot bring a claim that the Prime Minister has acted in way which is made unlawful by section 6(1) . Moreover, the effect of section 7(3) is that, in so far as the judicial review claim rests on such an allegation (by not complying with the investigative obligation imposed by article 3) the claimants do not have standing to bring that claim.

The Court of Appeal rejected the Claimant’s reliance in that case on a case in the Strasbourg Court called Centre for Legal Resources on behalf of Valentin Campeanu 37 BHRC 423 holding at 44:

… The applicant was the Centre for Legal Resources on behalf of Valentin Câmpeanu pursuing a discrete claim on behalf of an individual. This decision is not authority for any general principle; and certainly not for a principle that, to make the Convention effective, a person who cannot point to any violation of his own rights should nevertheless qualify as a victim where none has come forward, or can be identified, but there is some evidence that there might be possible victims somewhere in the world. As the Strasbourg court itself recognised, Câmpeanu was an exceptional case. ..

It is notable that the Strasbourg Court in Verein Klimaseniorinnen Schweiz and Others v Switzerland drew a rather different implication from the Campeanu case, holding at [476];

476.  In Centre for Legal Resources on behalf of Valentin Câmpeanu (cited above, §§ 103 and 105), the Court found that there might be “special considerations” where it could be accepted that applications could be lodged by others on behalf of the victims without a specific authority to act. The Court stressed that its judgments “[served] not only to decide those cases brought before [it] but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties”.

The UK Courts will have to deal with the evolved nature of Strasbourg’s standing rules after Verein Klimaseniorinnen Schweiz and Others v Switzerland. Suppose the hypothetical UK branch of the Swiss association were to seek to bring a claim before the UK Courts. On existing domestic authority that association would probably not meet the “victim test” under section 7 HRA 1998. This raises an intriguing question as to whether section 7 of the HRA 1998 may itself have to be reinterpreted pursuant to section 3 HRA 1998,which provides:

Interpretation of legislation.

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)This section—

(a)applies to primary legislation and subordinate legislation whenever enacted;

Conclusion

Lord Bingham held in R (SB) v Governors of Denbigh High School [2007] 1 AC 100 [, para 29] that the purpose of the Human Rights Act 1998 was not to enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated. Instead, it wasto enable those rights and remedies to be asserted and enforced by the domestic courts of this country – not only by recourse to Strasbourg. In R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 in which Lord Bingham famously held that the UK should “keep pace” with Strasbourg (by which he meant, don’t leap ahead, but keep up)².

If they are to keep up with Strasbourg’s understanding of our rights, the UK Courts may have to adapt their approach to standing under the HRA 1998. This does not seem to pose much of a problem. In so doing, the test that would be applied would remain narrower than the standing tests applicable for environmental associations to bring claims for judicial review³.

This blog was written by Alex Goodman KC.