Case Note: Price & Participation - The UK before the AARHUS Convention`s Compliance Committee

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INTRODUCTION

This year 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).1 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.2 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.3 Notwithstanding, the Convention has had significant impact on UK environmental law, primarily for two reasons. First, 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 at EU level.4 These include directives on enhanced public participation and access to environmental information.5 Secondly, an impact of the Aarhus Convention 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.6 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 the requirement in Article 9(4) that review procedures must be adequate and effective). While these discussions have been ongoing for a while,7 they have recently received further attention as a result of a number of commu-nications delivered by the Compliance Committee set up under the Aarhus Convention. The aim of this note is to analyse these communications relating to the UK's compliance with the Convention.

THE COMPLIANCE COMMITTEE

Before examining the complaints against the UK Government, a few words on the Compliance Committee are merited. The Committee was established in 2002 at the first meeting of the Parties to the Convention through the adoption of Decision 1/7.8 Complaints to the Committee can be submitted by Parties to the Convention, by the Secretariat to the Convention or by the public. The 'public' includes NGOs, in line with the Convention's strong emphasis on NGO involvement. Perhaps not surprising, submissions from the public have taken up most of the Committee's time; only one submission has been made by a Party (Romania against Ukraine) and the Secretariat has so far made no referrals to the Committee. Where the Committee finds a party to be in non-compliance with the Convention, its powers are somewhat limited. Upon deliberation (and pending consideration by the Meeting of the Parties), the Committee may: provide advice and facilitate assistance to Parties with regard to the implementation of the Convention; make recommendations to a Party; request that a Party submit a strategy for implementation of the Convention; make recommendations on specific measures to address issues of non-compliance; issue declarations of non-compliance; and/or issue cautions or suspend a Party's rights and privileges under the Convention.9 Despite these options, it should be noted that the Committee has no formal enforcement powers over Parties.

COMMUNICATIONS AGAINST THE UK

At the time of writing, a total of eleven communications have been filed with the Compliance Committee against the UK. Findings have been issued in four communications: one is ongoing, three have been declared inadmissible and three have been closed (one as a result of the communicant obtaining leave to judicially review the contested decision and two as a result of lack of corroborating information submitted by the applicant). Broadly speaking, the complaints heard by the Committee so far relate to public participation and access to justice.

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