This article seeks to outline some of the potential implications the UK Government’s new Bill of Rights Bill (“the Bill”), introduced in Parliament on 22 June 2022, on human rights as they relate to the environment.
One key element of the Bill is that it freezes in time “positive obligations”, which are currently owed by States in certain circumstances in order to secure the effective protection of the rights conferred by the European Convention on Human Rights (“ECHR”). As I will set out below, this has the potential to limit the growing interaction between human rights and the environment in domestic case law.
Background to the Bill
The Bill itself is rooted in the Government’s desire to reform the Human Rights Act 1998 (“the HRA”). The Bill, announced in the 2022 Queen’s Speech, has been long in the making. The 2019 Conservative Party Manifesto committed the Government to updating the HRA so as “to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.
The decision to restrict positive obligations appears to have come from the Government itself. In 2020 the Government established the Independent Human Rights Act Review, which reported back December 2021. That review body did not recommend that the Government restrict the ability of the courts to interpret Convention rights in a way that imposes positive obligations on public authorities.
Nonetheless, from late-2021 until early-2022 the Ministry of Justice ran a consultation on potential reforms to the Human Rights Act, in which it announced the Government’s intention to “restrain the ability of the UK courts to use human rights law to impose ‘positive obligations’ onto our public authorities without proper democratic oversight”. The consultation document suggested that the imposition of such positive obligations had created uncertainty as to the scope of the government’s (and other public authorities’) legal duties, fettering operational decision-making and the allocation of finite taxpayer resources. All of the respondents to that consultation, however, indicated either that there should be no change to positive obligations, that positive obligations provided protection for vulnerable people, or that this was not a genuine issue.
Despite this, the Government in its response to the consultation committed not only to enacting legislation that will ensure that the courts cannot adopt new interpretations of Convention rights that impose positive obligations on public authorities, but also to restricting the courts’ imposition of existing positive obligations. The rationale was again said to be that “the Government is committed to reducing burdens on public authorities and enabling operational experts to exercise greater discretion over the allocation of resources.”
Positive Obligations and the Environment
As summarised in this blog post by Mark O’Brien O’Reilly, the “right to a healthy environment” is already recognised by many States and human rights treaties. The ECHR, however, does not contain any such express right, as was confirmed by the European Court of Human Rights (“ECtHR”) in Hatton v United Kingdom (36022/97) (2003) 37 EHRR 28 at §96. Notwithstanding this, in various cases the ECtHR has interpreted existing Convention rights as applying in situations where harm (or a risk of harm) to persons has arisen in an environmental context.
Two Convention rights have featured particularly heavily that line of case law, namely Article 2, the right to life, and Article 8, the right to respect for private and family life, home and correspondence.
Articles 2 and 8 clearly entail negative obligations on States, i.e. a prohibition on the intentional and unlawful taking of life, or the arbitrary interference with a person’s Article 8 rights. Further to this, it is well established that, in certain contexts, Articles 2 and 8 impose positive obligations on States. In the context of Article 2, for example, States must put in place an administrative and regulatory framework to safeguard the lives of those within their jurisdictions [i]. States must also take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another, [ii] and adopt measures designed to secure respect for private life. [iii]
Most of the ECtHR’s environmental case law has been concerned with public authorities’ failure to respond adequately to risks posed by natural disasters or dangerous industrial activities. The applicants bringing those cases have, therefore, relied heavily on States’ positive obligations under Articles 2 and 8 to protect their rights in the face of a real and immediate environmental risk.
In Budayeva v Russia (15339/02) (2014) 59 EHRR 2, for example, the environmental harm in question was a mudslide which hit the town of Tyanuz, leading to the death of the applicant’s husband. In that case, the Russian authorities had prior warning that a mudslide could occur, and were aware of the potentially devastating consequences and risk to life. They had repeatedly been warned that repairs the town’s mudslide defences were needed, or the establishment of observation posts to warn civilians in the event of a mudslide, but no steps were taken. The ECtHR held that the Russian authorities had therefore failed to discharge their duty to take appropriate steps to safeguard the lives of the residents of Tyanuz, in breach of Article 2.
Similarly, in López Ostra v Spain (1995) 20 EHRR 277, a waste treatment plant had been built close to the applicant’s home. It began operating in breach of a licence, releasing fumes and smells which caused health problems to local residents. The ECtHR held that severe environmental pollution can affect individuals’ wellbeing, preventing them from enjoying their homes in such a way as to affect their private and family life. Local authorities failed to take any steps to prevent this and so had failed to strike a balance between the town’s economic wellbeing and the applicant’s Article 8 rights, in breach of that Article.
The principles arising from the Strasbourg case law on the environment were recently summarised and applied by Mr Justice Fordham in Richards v Environment Agency  Env LR 14. [iv] While an appeal against Fordham J’s decision was allowed by the Court of Appeal, [v] the Court did accept the applicability of Articles 2 and 8 in cases where industrial activity had caused pollution. [vi] It is therefore well-established, both domestically and in Strasbourg, that Articles 2 and 8 can be engaged in the context of environmental harm caused by specific industrial activities or natural disasters.
Claimants – both in the UK [vii] and in other ECHR States [viii] – have increasingly sought to go one step further and to apply the environmental “positive obligations” case law in the context of climate change. It has been suggested that States are under a duty to put in place administrative frameworks, and take operational steps, to protect the Article 2 and 8 rights of their citizens from the threat posed by climate change even before a specific individual risk has arisen.
There are several cases proceeding before both the domestic courts and the ECtHR concerning the interaction between Convention rights and climate change. In Strasbourg, the Court is poised to decide three cases in which the applicants have alleged breaches of positive obligations owed by States in respect of climate change under Articles 2 and 8. [ix] None of these cases has yet been heard, let alone decided.
The issue of climate change is more universal, complex, and long-term than individual environmental disasters or industrial hazards. Whether and how the domestic and Strasbourg Courts will apply the established Article 2 and 8 case law to the issue of climate change therefore remains an open question.
Clause 5 of the Bill
This is where clause 5 of the Bill comes in. Essentially, clause 5 freezes positive obligations in time.
Clause 5(1) reads as follows:
“(1) A court may not adopt a post-commencement interpretation of a Convention right that would require a public authority to comply with a positive obligation.”
A “positive obligation” is defined by clause 5(7) as “an obligation to do any act”.
Clause 5(6) defines post-commencement interpretations negatively as being any interpretation that is not a “pre-commencement interpretation”. A “pre-commencement interpretation”, is, according to clause 5(3) to (5), one which satisfies one of two conditions.
The first condition (see clause 5(4)) is that:
(a) At any time before the coming into force of clause 5, a superior court of record adopted the interpretation, and
(b) That interpretation has not been overruled by a subsequent judgment of such a court (whether given before or after the coming into force of clause 5).
The second alternative condition (see clause 5(5)) is that:
(a) At any time before the coming into force of clause 5, the ECtHR adopted the interpretation, and
(b) The ECtHR has not resiled from that interpretation in a subsequent judgment, whether given before or after the coming into force of clause 5.
The effect of this is that, where there is no pre-existing binding domestic or Strasbourg authority which interprets Convention rights so as to impose an obligation to do any act, clause 5(1) will prevent the UK courts from imposing such an obligation themselves. In other words: no new positive obligations.
The wording of clause 5 is slightly unclear on the level of specificity with which previous Strasbourg or binding domestic authority will have had to interpret a Convention right so as to give rise to a positive obligation in order for a pre-commencement interpretation to be found. For example, as set out above, it is established as a general principle that States must take operational measures to protect individuals whose lives are at risk from the criminal acts of another individual. In particular, States must take steps to warn a person who is at risk of harm of that risk, where the State is aware of it: see Osman. It is unclear from the Bill whether it will be the overarching interpretation – i.e. the principle that States must take steps to safeguard lives – or the more fact-specific interpretation and application – i.e. the requirement for an Osman warning – that will survive as a “pre-commencement interpretation”. That will ultimately be a matter for domestic courts to decide when interpreting the clause, if enacted.
Even if a more expansive interpretation were given to the meaning of “pre-commencement interpretation”, the clause goes a step further. Clause 5(2) limits the ability of the courts to impose positive obligations even where they do arise from pre-commencement interpretations. The sub-clause states that domestic courts should, before requiring a public authority to comply with the obligation in question, “give great weight” to the need to avoid applying an interpretation that would, inter alia, impact a public authority’s ability to perform its functions, undermine the public interest in allowing public authorities to use their own expertise when deciding how to allocate financial and other resources, or affect the operation of primary legislation.
Overall, then, clause 5 seeks to significantly cut down the courts’ ability to impose positive obligations on public authorities.
Clause 5 and the Environment
So what does this mean for the environment? As noted above, in the context of environmental disasters and industrial hazards, both the domestic and Strasbourg courts have recognised positive obligations as arising under Articles 2 and 8. Such obligations will therefore survive as arising from pre-commencement interpretations, subject to the restrictions in clause 5(2).
Beyond that, the extent to which new obligations will arise in the environmental context largely depends on what if any decisions are taken either by the ECtHR or the Supreme Court before the Bill comes into force.
In terms of the specific issue of climate change, the extent to which the domestic courts will be able to impose positive obligations on States depends principally on one of two scenarios occurring:
- Before the Bill comes into force, a superior court of record or the ECtHR adopts an interpretation of Articles 2 and 8 which imposes positive obligations on States in respect climate change; or
- After the Bill comes into force, the ECtHR adopts an interpretation of Articles 2 and 8 which imposes positive obligations on States, and which is framed as an application of the established principles derived from pre-commencement environmental case law on Articles 2 and 8.
Even if the second scenario were to occur, there would clearly be scope for defendants to argue that clause 5 will prevent the application of existing general principles to novel factual scenarios.
To date, both Strasbourg and domestic case law on human rights and the environment has relied on States’ positive obligations under Articles 2 and 8. Those obligations have so far only been applied in the context of fairly localised environmental harms.
Clause 5 of the Bill of Rights Bill could clearly have significant consequences for the further development of domestic human rights law as it relates to the environment. Whether and to what extent the field ends up being severely limited by the Bill depends in large part on what the courts do between now and the commencement of clause 5, if enacted in its current form, and how restrictively the clause is interpreted in the future.
This would be an unsatisfactory position for the UK to be in. The reason why positive obligations have been implied into Convention rights by courts is not, as the Government seems to think, so that unnecessary and unwarranted burdens can be placed on public authorities by way of judicial overreach. The courts have deemed certain obligations to exist precisely because they are necessary to secure the effective protection of fundamental human rights. In the environmental context, restricting the development of those positive obligations could remove a powerful tool for ensuring that non-State actors are restrained from causing untrammelled harm to the environment in a way that impacts on individuals’ lives, homes and private and family lives.
Furthermore, the new clause, however it is interpreted, will inevitably lead to a divergence between Strasbourg and domestic jurisprudence. The Convention is a living instrument. Its application by the ECtHR has evolved in line with developments in the Member States to which it applies, to account for growing consensuses among Member States on societal issues. In the sphere of positive obligations, Clause 5 of the Bill would cut the UK off from these developments. The likely consequence will be an inconsistent application of Convention rights by domestic courts and the ECtHR, and a rise in successful applications being brought against the UK in Strasbourg. That is an issue which the Government will only be able to solve by withdrawing from the ECHR entirely. Given some of the recent comments made by Government spokespeople about the ECHR, one is left wondering whether that is one of the long-term goals.
Flora Curtis is a barrister at Francis Taylor Building specialising in environmental, public and planning law.
[i] See, for example, Giuliani v Italy (23458/02) (2012) 54 EHRR 10 (Article 2).
[ii] See, for example, Osman v the United Kingdom (23452/94) (2000) 29 EHRR 245 at §115.
[iii] See, for example, Evans v United Kingdom (6339/05) (2008) EHRR 34 at §75 (Article 8).
[iv] A summary of Fordham J’s decision can be found here.
[v] See here for a summary of the Court of Appeal’s decision.
[vi] See §§10-15.
[vii] See, for example, R (oao Plan B Earth) v Prime Minister  EWHC 3469 (Admin).
[viii] See, for example, the Dutch Urgenda case. An unofficial English translation of the Dutch Supreme Court’s judgment is available here.
[ix] See Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (53600/20) and Carême v. France (7189/21). See also Duarte Agostinho and Others v. Portugal and Others (39371/20), in which the Court will also consider States’ positive obligations under Article 3 (the prohibition of torture and inhuman or degrading treatment).
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