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Our rights to challenge bad environmental decisions at risk

The UNECE Convention on Access to Environmental Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Aarhus Convention”)1 was adopted in 1998, linking for the first time in binding international law, human rights and environmental protection.

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The objective of the Convention as stated in Article 1 is to guarantee the rights of public access to information, participation in environmental decision-making, and access to justice in environmental matters, so that “…present and future generations…” have the right “…to live in an environment adequate to his or her health and well-being…”.

The rights-based approach encompassed in these three ‘pillars’ established the Aarhus Convention as a new kind of environmental agreement that linked substantive and procedural environmental rights, sustainable development and the involvement of all members of the public. As such, the Aarhus Convention brought to the forefront the space for public interaction with public authorities to contribute to environmental protection and government accountability within a democratic context.

One of the most important domestic legal mechanisms, encompassing the dynamic of public participation, access to information and accountable governments, is Judicial Review (JR). JR represents almost the sole mechanism for civil society to challenge the decisions, acts and inactions of public bodies affecting the environment in the courts, and as such, it is imperative that it operates fairly and effectively.

Both the UK and the EU (the latter as a party in its own right) signed the Aarhus Convention in 1998 and ratified it in 2005. The EU then adopted two new Directives on access to environmental information and public participation in decision-making. The UK duly amended its statutory regime to ensure compliance with the new requirements in relation to the Convention’s information rights and public participation pillars.

In terms of compliance with the third pillar concerning access to environmental justice, the UK government relied on the existing process of JR alongside statutory reviews – at that point assuming they were Aarhus compliant. However, as set out below that has not proved to be the case and the UK remains to this day in non-compliance with certain provisions of the Convention.

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