Price and Participation: The UK Before the Aarhus Convention's Compliance Committee

Abstract

2011 marks the tenth anniversary of the coming into force of the 1998 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention in short). Heralded as the most impressive elaboration of Principle 10 of the Rio Declaration when adopted, the Convention aims to 'contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being' through an emphasis on procedural rights. This proceduralisation, put forward in the Convention’s ‘three pillars’, aims to facilitate access to environmental information, public participation and access to justice in environmental matters. In this venture, the Convention lends heavy emphasis to the involvement of NGOs while leaving contracting parties with significant discretion as a result of the Convention’s relatively weak obligations and references to “requirements under national law” when defining central features. Notwithstanding this, the Convention has had significant impact on UK environmental law. This is primarily so for two reasons. Firstly, despite the UK government taking no formal steps of implementation upon signing the Convention, changes to UK law has been made by virtue of EU directives facilitating implementation of the Convention on EU level. These include directives on enhanced public participation and access to environmental information. The second impact of the Aarhus Convention on UK law, is found in the ongoing litigation and debate on whether the reliance by the UK government on judicial review as the primary avenue of implementing Article 9 of the Convention (on access to justice) represents sufficient implementation of the Convention. The contentious issues when it comes to judicial review are that such procedures are expensive (possibly contravening Article 9(4) requiring that access to justice must not be prohibitively expensive) and the fact that the scope of judicial review is limited by reference to illegality, irrationality and procedural impropriety (potentially in contravention of Article 9(4)’s requirement that review procedures must be adequate and effective). While these discussions have been ongoing for a while, they have recently received further attention as a result of a number of communications delivered by the Compliance Committee set up under the Aarhus Convention. The aim of this note is to analyze these communications relating to the UK’s compliance with the Convention.