Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.
I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.
The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties. A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.
The challenges raise a whole host of issues – the key ones are:
(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;
(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;
(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;
(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;
(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.
A Mother v. A Father HHJ Platt, Romford County Court, 11 May 2012, read judgment
I recently dared to enter religious territory in a post about religious no-go zones declared by the courts – they should not pronounce on the intricacies of Sikh succession because it raised doctrinal issues which the courts should not decide. Compare and contrast this family law case.
Judges have to get involved in disputes on divorce, of which the current case is an exquisitely difficult example. Its facts are very simple. C was 10. Her parents and grandparents are Jewish. Her father is a Christian convert, and C wanted to be baptised. Her mother did not want this. She said father had brainwashed C, and it was premature. Mother went to court to stop any baptism proceeding until C was 16. The Court could not simply wash its hands of the case; that would encourage self-help taken by one or other parent, to the lasting resentment of the other.
A, R (o.t.a A) v. Chief Constable of B Constabulary  EWCA 2141 (Admin), Kenneth Parker J, 26 July 2012, read judgment
The public/private divide still gets lawyers excited, even in an Olympic summer, and for good reason – my image is simply to cool the fevered brow of those fresh from the stadium or the beach. Now for the problem met head on in this case. Generally speaking, parties to a contract may treat the others how they please, as long as that treatment does not offend the terms of the contract or specific consumer protection rules. But, equally generally, a public body is obliged to treat others in accordance with public law rules of fairness, and can challenge unfairness by judicial review. And this case is a good example of the intersection between these principles.
A had run a breakdown recovery service for the police for some years. The police then interposed a main contractor, FMG, who awarded the contract to A for the continuation of the job, now as a subcontractor. But the sub-contract, understandably enough, provided that its award was subject to vetting by the police. And the police then refused to give A clearance. Why? The police would not say, even when A threatened proceedings. And they said that they did not have to. Their line in court was that it was all governed by the contract, and the courts had no business in poking its nose into their reasoning – in the jargon, it was non-justiciable. They relented to some extent in the course of the proceedings, by giving some information, but still said that they were not obliged to do so.
Swift v. Secretary of State for Justice  EWHC 2000 (QB) Eady J, read judgment
This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see  of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?
Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via s.3 of the Human Rights Act (to make the FAA rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.
So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.
We have become used to the courts getting involved, more or less willingly, in religious issues, not least where religious freedoms conflict with legal rules which are said to be inconsistent with the exercise of those freedoms. But as Adam Wagner pointed out, in an earlier round of this litigation concerning two Sikh places of worship (Gurdwaras), the courts have developed rules stopping themselves from deciding certain cases, not least because the courts recognise they don’t know what they are doing once they get themselves immersed in issues of religious doctrine.
Flatela Vava et al v. Anglo American South Africa Ltd  EWHC 1969 (QB) 16 July 2012, Silber J read judgment
Back to the problem of when and where you can sue various members of a group of companies. In the Cape case (for which see my post), a parent company was held liable for failing to ensure that its subsidiary properly managed the risks posed by asbestos. In this case of Vava, the claimants wanted to sue a South African registered holding company (AASA) in the UK, on the basis that the real decisions were taken in the UK, and hence AASA were domiciled in the UK for purposes of suing them.
The case came before Silber J, on an application by the claimants for documents relevant to this jurisdictional issue. AASA resisted, on the basis that there was not a good arguable case that it could be sued in England, and therefore it did not have to produce the documents relevant to this issue.
Harrow Community Support Ltd v. Secretary of State for Defence  EWHC 1921 (Admin), Haddon-Cave J, 10 July 2012, read judgment
In 776BC, the Olympics consisted of one day’s running and wrestling. A hundred years later, chariots and single horses arrived, thanks to the influence of Phaidon of Argos (a big shot in seventh-century Greece), and I dare say the civic pride which each participating Greek city-state brought to the Games was already running high. But I don’t suppose either Phaidon or Baron de Coubertin would have predicted the move which triggered this piece of litigation. The MoD decided to site a missile launcher and military personnel on the roof of a Council tower block in Leytonstone during the Olympics. Like all military hardware, it has a nice acronym, GBAD, being a Ground Based Air Defence system.
Anyway, a residents’ association formed by residents of Fred Wigg Tower, 15 storeys and containing 117 flats, decided to challenge the MoD. As their petition put it, “We, the undersigned residents of FWT, Montague Road, Leytonstone E11 3 EP, do not want explosive missile systems placed on the roof of our home”. Nor, I suppose, do any of us, but some of us may want someone else to have missile launchers on their roofs.
A sparkling, erudite and funny lecture last Thursday 5 July from the Chief Justice of Australia, exploring how the Australian system with a constitution, but without a Bill of Rights/Human Rights Act, seeks to deliver human rights protection – thanks to the Administrative Law Bar Association and the Angl0-Australasian Law Society. I shall try to summarise the differences, though, rather like the pre-HRA UK position, Australian human rights protection is a subtle one and a difficult one to explain in a short post. Particularly for a Pom. So I am in part throwing down a challenge to our Australian readers (up until this point, at least, quite a few) to comment on what follows.
The constitutional framework is all important. There are three major differences between this and the UK “constitution”. The first is the presence of a written constitution over 100 years old, and amendable only by referendum. The second is a federal system laid down by that constitution. Out of that arrangement comes a separation of powers between judiciary, legislature, and executive, and also between the Commonwealth (i.e, the federation) and each State, taken against the background of general common law principles drawn from the States’ shared colonial history. And the third is the lack of any substantive human rights instrument applicable to Australia as a whole.
On the EU watch again, I am afraid. We have looked at getting documents out of the EU, in the context of the IFAW case about the German Chancellor’s letter, via Regulation (EC) No 1049/2001 (the EU Access to Information Regulation). And also on how to seek annulment of EU laws and decisions from the EU courts (Inuits and all that). Both apply to all EU issues. We have mused on what might happen if the EU institutions sign up to the ECHR, so that complaints about them can go to the Strasbourg Court.
Now we return to environmental cases, where there is a specific measure, EU Aarhus Regulation 1367/2006, which applies the Aarhus Convention to EU institutions. We have seen how in a specific context this Regulation must be interpreted in the light of the meaning of the Convention: my post on the pesticides and air quality challenges, where the General Court of the EU effectively ignored the words “of individual scope” in the Regulation to make the Regulation comply with the Convention. But I am now going to have a look at this measure more generally. Remember we are not here dealing with getting environmental information out of member states; that question is dealt with via a separate EU Directive (2003/4), transposed in the UK by the Environmental Information Regulations 2004.
Coalition for Responsible Regulation v. EPA US Federal Court of Appeals, DC, 26 June 2012, read judgment
This week, two big decisions which will have come as a relief to the President. The US Supreme Court did not strike down his healthcare law (judgment here), and, to the subject of this post, neither did the Federal Courts of Appeal in Washington declare invalid key greenhouse gas rules set by the Environmental Protection Agency. This saga is a perfect illustration of how closely law and politics get intertwined in the US.
As I pointed out in my previous post, Massachusetts v. EPA (549 U.S. 497 (2007)). told the EPA that it had a duty to regulate greenhouse gas (GHG) emissions because they were “any air pollutant” within the meaning of the Clean Air Act – as two prior general counsels had repeatedly told it. The EPA (under the previous administration) needed to be taken to the Supreme Court before responding. Thereafter, the EPA, with a new head appointed after Obama’s election, reached an Endangerment Finding, to the effect that GHGs may “reasonably be anticipated to endanger public health or welfare”. In the pellucid prose of this Court,
Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.
Industry and a whole host of states (no prizes for guessing which fossil fuel producing states were in support) sought to challenge these rules.
I am in the middle of a series of posts about the way in which the EU institutions can be kept in check by individuals, including looking at challenges to EU measures (see my Inuit post) and the specifics of seeking an internal review of EU implementing Regulations via the EU Aarhus Regulation 1367/2006 (see my post on the pesticides and air quality challenges). So it was a happy coincidence that last Thursday, the CJEU allowed an appeal in a case concerning documents sought by an NGO from the Commission. We are here in the territory of all EU institutions and all EU issues, not simply environmental questions arising under the Aarhus Convention, though, as we shall see, this is an environmental case.
In my post of today about checks on EU legality, I made the point that no institution formally monitors the EU apart from EU institutions. Moves are afoot to change that, though not in a form that diehard Eurosceptics are likely to relish. Article 6 of the Lisbon Treaty of European Union says that the EU shall accede to the ECHR. As and when that occurs, the European Court of Human Rights will assume a formal role in adjudicating upon the legality of EU measures. The details of accession could not be settled by the purely EU Treaty of Lisbon, hence the ongoing negotiations.
However, things have been happening very recently. Yesterday, 19 June, a joint informal body of members of the European Parliament and Council of Europe parliamentarians welcomed the prospect of talks resuming on EU accession to the European Convention on Human Rights, and, last week, the Committee of Ministers of the Council of Europe decided to pursue negotiations with the European Union with a view to finalising the legal instruments setting out the way in which the EU would accede to the ECHR.
In a recent post I mentioned that there has been criticism of the scope of the EU Aarhus Regulation inserting provisions about transparency, public participation and access to justice into EU processes themselves. It struck me just how confusing the whole area of EU challenges to EU measures is, so I thought I would summarise it as best I can in this and a following post. Here goes; the going may get a bit bumpy, but it is important stuff. I hope also to give some EU context to the debate about whether something is or is not a legislative act under Aarhus which I trailed in that post.
The EU signed up to the Aarhus Convention on environmental matters, as have all the member states. And the EU has made member states implement Aarhus-compliant procedures in major areas such as environmental impact assessment and industrial emissions, via the 2003 Public Participation Directive. The EU also requires member states to introduce a wide-ranging right to environmental information, transposed in the UK via the Environmental Information Regulations. The European Court has also chipped in with its own Aarhus gloss in the Slovakian Bearcase; whenever a member state is considering some provision of EU environmental law, it must interpret that provision, if possible, so that it complies with Aarhus standards of public participation, even though those standards may be in the parts of the Aarhus Convention which have not received their own direct transposition into EU, let alone domestic, law.
Stichting Natuur en Milieu & Pesticide Action Network Europe v. European Commission (read judgment), and Vereniging Milieudefensie & Stichting Stop Luchtverontreininging Utrecht v. European Commission (read judgment), General Court, 14 June 2012
In these two cases, the General Court in Luxembourg (successor to the Court of First Instance) has decided that the terms of the Aarhus Convention prevail over the EU’s own regulation about access to information, public participation, and access to justice within EU institutions. Therefore NGOs are entitled to an internal review of certain decisions taken by the EU Commission. A decision, it appears, of some controversy, given that the European Commission, European Council and European Council were all arguing against that result.
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