ENVIRONMENTAL INJUSTICE- REDRESS THROUGH THE EUROPEAN COURT OF HUMAN RIGHTS AND THE HUMAN RIGHTS ACT 1998

 

 

NICOLA ROGERS

BARRISTER

ASSISTANT DIRECTOR, THE AIRE CENTRE

 

 

INTRODUCTION

 

Perhaps the most significant legislative development of this century for the United Kingdom is the coming into force of the Human Rights Act 1998 which incorporates the main substantive provisions of the European Convention on Human Rights, to which the UK is party, into UK law. It is obvious significance is the ability for litigants in UK courts to use the European Convention on Human Rights in everyday proceedings. The courts will be guided by the jurisprudence of the European Commission and Court of Human Rights, although not bound by it. Furthermore the Human Rights Act 1998 makes it illegal for a public authority to act in a manner which does not conform with the European Convention of Human Rights. A right of action follows from the alleged failure of a public authority to act in conformity.

 

How this will impact upon the area of environmental law, as with all areas of law, remains to be seen in time to come. However it is fair to say that the European Convention on Human Rights does not provide a wealth of environmental protection. There is no specific provision aimed at the protection of “environmental” rights contained within the Convention. This is not that surprising bearing in mind that the Convention is a traditional human rights instrument, aimed at the protection of individual rather than collective rights. However the growing importance of environmental rights issues and the increasing awareness of the public about environmental protection and threats has lead to an increase in the numbers of cases involving environmental complaints.

 

A: The Rights Protected

 

Protection of the environment v use of land rights

 

Where there is individual land ownership, one of the first areas of conflict involving the environment is where the landowner is restricted in the use of his or her land by measures justified but of his or her land by measures justified by environmental protection. Until recently this was the principle area of complaint involving environmental issues. The Court and Commission, whilst sympathetic to the protection of property rights recognised the need on the part of the State to preserve areas of natural beauty and implement environmental protection programmes (see Application no. 11185/84) 42 DR 275 and Application no. 12570/86, 56 DR 127).

 

Harm to the environment

 

The only complaints concerning harm to the environment that can be argued under the European Convention on Human Rights are those where that harm infringes directly on an individual’s rights protected by the Convention. In most cases this will involve either an interference with the individual’s private life or home, protected by Article 8 of the Convention or with the individual’s right to peacefully enjoy his or her property, protected by Article 1 of Protocol 1.

 

The European Commission on Human Rights has considered cases, for instance, of interference with an individual’s right to private life and home as well as the peaceful enjoyment of his property through aircraft noise from increased flights and extension of flight paths at Heathrow airport (see Arrondelle v the United Kingdom (1980) 19 DR 186 and Baggs v the United Kingdom (1985) 44 DR 13).

 

The State’s responsibility is engaged if it creates the interference itself as in the case of extending a public utility or building. However, its responsibility can be additionally engaged whether although the State is not actually creating the interference, it fails to control the interference or sufficiently regulate it.

 

The European Court of Human Rights has confirmed that States bear responsibility for the activities of private companies where it is the duty of the State authorities to regulate such activities (see Lopez Ostra v Spain (1994) Series A no. 303-C).

 

It is important to observe that the level of interference in an affected individual’s life need not be so severe as to seriously endanger their health. Rather the European Court will, in certain circumstances, accept that there has been an interference with an individual’s home or private life where the individual is prevented from enjoying his or her home or his or her general well-being is affected (see Lopez Ostra v Spain, above).

 

 

Access to information

 

The European Court of Human Rights has also found that not only do States have the obligation to prevent environmental pollution and hazards but also where the risks to health are severe, they are under the obligation to provide information to the affected individuals. The European Court held in a case where the applicants were living near to a factory which suffered an explosion in the past and fell short of safety standards that Article 8 had been violated because the State had failed to provide the applicants with essential information about the risks posed (see Guerra v Italy, Judgement of 19 February 1998).

 

B: Bringing Rights Home

 

The problems of taking a case to the European Court of Human Rights

 

In the past litigants from the United Kingdom who have felt that their rights under the European Convention on Human Rights have been violated have had to take their cases to the European Court of Human Rights in Strasbourg. Not only is this an extremely time consuming and at times costly exercise but it can be at times fruitless.

 

Taking a case to Strasbourg is time consuming because all domestic remedies must be exhausted before a case can be lodged. This can involve years of litigation in UK courts with little prospects for success. Thereafter it can take up to six years for a case to finally decided by the European Court from the time it is first lodged before that court.

 

Many cases, if not most, which are lodged before the European Court of Human Rights do not proceed to full consideration on the merits by the Court. This is because of the strict admissibility criterion laid down by Article 34 of the European Convention on Human Right and the conservative nature of the Court, which at time restrictively apply admissibility criterion.

 

The problems faced by the litigant before the European Court of Human Rights are compounded by the large amount of evidence needed in order to persuade the Court to find a violation of the Convention. In the case where a person is burnt through a chemical explosion this may not be difficult but where the effects are more subtle or latent or not yet understood by scientists or medical professionals the person may not be able to provide enough evidence of his or her claim. Being an international court with a merely supervisory role, the European Court does require high standards of proof to be met before it will be willing to interfere.

 

Using the Human Rights Act 1998

 

The Human Rights Act 1998 will hopefully circumvent many of the problems outlined above. It will now be possible for litigants to rely on their rights under the European Convention on Human Right in normal proceedings and expect the UK courts to take account of the decisions of the European Court and Commission on Human Rights. UK legislation where possible will have to be read in conformity with the Human Rights Act (sections 2 & 3 of the Act).

 

Furthermore individuals will able to take action against public authorities that act or fail to act in a manner which is not in conformity with the European Convention on Human Rights (sections 6 & 7 of the Act).

 

In order to take action against the public authorities the individual need only show that they are a “victim” of a violation in the same way as they have to prove they are a victim for the purposes of taking a case to the European Court of Human Rights. A victim can include for these purposes, an indirect victim or a potential victim as well as the family member of a person now deceased. A public authority is given a broad meaning under Section 6 of the Act and includes quasi-public bodies which have both private and public functions or private companies with statutory roles as well as courts and tribunals.

 

A glance at the schedule to the Human Rights Act 1998 will reveal that the main provisions of the Convention between Articles 2 and 18 are incorporated into the Act with the exception of Article 13 as well as the Protocols to which the UK is a party.

 

In debating the Human Rights bill the Lord Chancellor made it clear that it was unnecessary to incorporate Article 13 of the European Convention because Article 13 which concerns the right to an effective remedy for the breach of Convention rights would be “incorporated” by the very act of bringing the Human Rights Act into force and therefore making the Convention rights justiciable in the UK courts.

 

The advantage of being able to rely on the European Convention on Human Rights in UK courts is not only procedural and more time effective but might also be substantive. As indicated above, the European Court can at times be very conservative. This is largely due to the fact as an international court, it tries to keep interference in domestic legal issues to a minimum for largely political reasons. Furthermore the parties to the European Convention on Human Rights are wide ranging including Russia and Turkey and what may appear to be harsh or unacceptable in one State would be the norm in another. To some extent therefore standards to the lowest common denominator often apply and the Court will afford States a wide “margin of appreciation” in certain areas. The UK courts however are concerned only with norms and standards in the UK and arguably a higher standard should be attainable in the UK than is achievable as a minimum to be applied across a wide range of State with differing civil and political backgrounds and social and economic standards.

 

CONCLUSIONS

 

The European Convention on Human Rights is not the answer to all environmental ills. However it has been interpreted as a living instrument and as public awareness has increased in the environmental litigation area, the European Court and Commission on Human Rights have had to provide solutions to environmental problems.

 

However taking a case to the European Court of Human Rights is a lengthy and at time costly process. A wealth of patience and evidence is required and the result can be disappointing because of the nature of the Court’s remit and its composition.

 

The Human Rights Act 1998 will provide a mechanism for relying on the European Convention on Human Rights in UK courts. It will be more cost and time effective than taking a case to Strasbourg and may even result in higher standards being set than is presently being done by the European Court in certain areas.

 

Ultimately, of course, individuals will still be able to take their cases to the European Court of Human Rights where their complaints have not been remedied by the UK courts and Convention standards will remain the minimum level of adherence to fundamental rights.

           

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