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Air Pollution in the High Court

According to Public Health England, 29,000 early deaths a year in the United Kingdom are thought to be caused by inhaling tiny particles of unburnt soot known as particulate matter. The government has  recently estimated that a further 23,500 deaths are caused by the other key dangerous pollutant, nitrogen dioxide, bringing the total annual death toll to 52,500. Nitrogen dioxide in the United Kingdom has in fact been at illegal levels in contravention of EU Directive 2008/50 in 90% of the country’s air quality zones since 2010, and the Government has been taken to Court 7 times, including to the Supreme Court and twice to the CJEU in 2014 because of this, and because of its subsequent failures to adequately remedy the situation.

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The High Court in early November ordered that the Government must, in accordance with Article 23 of the 2008 Directive, remedy its non-compliance “in as short a time as possible”[1] because the Air Quality Plan (AQP) produced in 2015 following the second Supreme Court decision[2] was not up to meeting the urgent need for action. The recent plan was criticised for its overly optimistic, unrealistic projections and plan for reviews at five-year intervals, with the first one in 2020. The Court found that five-year intervals would be satisfactory to monitor air quality in ordinary circumstances, but not where limit values had been so far exceeded. Essentially, these cycles were too long when there is such an urgent need to bring limits back within the Directive. The second issue was the modeling method: the Government miscalculated the diesel emissions from cars and despite knowing this, continued to use the same method. The most recent High Court Judgment[3] criticised the Government’s planned timeframe and reduced it to 8 months for a final plan to be in place.

The Role of the Convention

Following the series of judgments and the court’s increasing frustration with the government, does it now fall to the European Convention on Human Rights to protect the lives of the UK citizens? Article 2 of the European Convention on Human Rights, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted, it also enshrines one of the basic values of the democratic societies making up the Council of Europe.” (Makaratzis v. Greece, Grand Chamber of 20 December 2004, § 56).

The Positive Obligation of Article 2

States should not only refrain from the intentional and unlawful taking of life, but also take appropriate steps to safeguard the lives of those within their jurisdiction, in particular by putting in place effective criminal-law provisions backed up by law-enforcement machinery[4] The absence of any direct State responsibility for the death of an individual does not exclude the applicability of Article 2[5].

However, positive obligations flowing from Article 2 should “be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities”. “Where there is an allegation that the authorities have violated their positive obligation to protect the right to life (…), it must be established to the [Court’s] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”[6]

In Kemaloglu v Turkey (2012) the applicant’s seven-year-old son froze to death while trying to walk back home from school when due to a blizzard, it had closed early. The municipality shuttle did not come on time, and the court held that although not every risk to life obliged the authorities to take operational measures to prevent that risk from materializing, in this case, by neglecting to inform the municipality shuttle service about the early closure of the school, the Turkish authorities had failed to take measures which might have avoided a risk to the child’s life and as such, breached their positive obligations under Article 2, right to life.

Comment

Set against the background of the principles established in Osman; and the evidence available to the government about the dangerous levels of nitrogen dioxide and other dangerous pollutants there must be an argument in certain cases that the real and immediate risks to the lives of the individuals who suffered premature death as a result of poor air quality, were clear. The effect of poor air quality disproportionately affects children, whom arguably deserve a higher level of safeguarding, as in the Kemaloglu case. Taking Osman to the next stage of the test, there are measures that could be taken and have been ordered by the Courts such as a satisfactory air quality plan and an appropriate timeframe for implementation.

So in summary, the government to a large extent accepts the evidence, and has even produced its own evidence as to the number of deaths annually caused by poor air quality. It has also known that it has been in breach for six years. The government knew that the modeling it was using to project emissions was not correct, but it carried on regardless. There are air quality plans that could be put in place that would be compliant with the Directive to act to bring air pollution within the limit values as soon as possible. The government’s willful ignorance in taking the measures ordered by the Court could not only see it subject to the financial sanctions due in 2020, but also failing in its positive obligations under Article 2 of the Convention to protect many thousands of peoples right to life.

[1] ClientEarth (Claimant) v Secretary Of State For The Environment, Food & Rural Affairs (Defendant) & (1) Mayor Of London (2) Scottish Ministers (3) Welsh Ministers (4) Secretary Of State For Transport (Interested Parties) (2016)

[2] R (On The Application Of ClientEarth) v Secretary Of State For The Environment, Food & Rural Affairs (2015)

[3]R (On The Application Of ClientEarth) v Secretary Of State For Environment Food & Rural Affairs (2016)

[4] L.C.B. v. the United Kingdom, judgment of 9.06.1998 ; Osman v. the United Kingdom, judgment of 28.10.1998.

[5] Angelova and Iliev v. Bulgaria, judgment of 26.07.2007, § 93

[6] Osman v. the United Kingdom, § 116

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