Legal rights in the information age

The United Nations Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, otherwise known as the Aarhus Convention, is perhaps one of the most significant pieces of environmental legislation in recent years.

Adopted on 25 June 1998 in the Danish city of Aarhus, the Convention aims to improve environmental decision making in three ways:

• improved access to environmental information;

• more effective public participation; and

• greater access to justice.

The Convention is a new kind of environmental agreement. It links both environmental and human rights and acknowledges that we have an obligation to future generations. It establishes that sustainable development can be achieved only through the involvement of all stakeholders, and it links government accountability, transparency and responsiveness.

Kofi A. Annan, secretary-general of the United Nations, said when the Convention was born, “Although regional in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of principle 10 of the Rio Declaration, which stresses the need for citizen’s participation in environmental issues and for access to information on the environment held by public authorities. As such, it is the most ambitious venture in the area of ‘environmental democracy’ so far undertaken under the auspices of the United Nations.”

Ratification

Both the European Union and the UK government signed the Convention in 1998 but, to date, have not ratified it. There were two Meetings of Signatories in 1999 and 2000 and a Working Group was set up in 2001. In addition, an International Conference on the Aarhus Convention resulted in a Brussels Declaration in January 2002 made by 26 countries that urged the EC to ratify the Convention’s aims throughout Europe.

The Convention entered into force on 30 October 2001 with 23 European countries ratifying it. By signing the Convention, all signatory states have committed themselves to its underlying message that everyone has a right to live in an environment adequate for health and well-being.

Despite the UK failing to ratify the Convention, the government now feels it meets the requirements of the Convention. In July 2002, the Department for Environment, Food and Rural Affairs (DEFRA) launched a public consultation on draft new Environmental Information Regulations, illustrating the government’s commitment to freedom of information and to greater openness and transparency.

The original Environmental Information Regulations came into force in 1992 and stated that the public had a right of access to environmental information held by public authorities and certain other bodies.

The consultation for the new draft regulations closed at the end of October 2002 and a summary of its conclusions is currently being laid before Parliament, with the Regulations expected to come into force immediately afterwards.

UK regulations

DEFRA says that the new regulations are a step towards the full implementation of the Freedom of Information Act 2000 and will enable the UK to fulfil its obligations under the Aarhus Convention. It says that making information about the environment publicly available is considered essential in contributing towards the achievement of sustainable development. If the public can obtain information on the environment easily, they will then be able to understand more fully the consequences of certain proposals and actions and to participate more effectively in decision-making processes that affect the environment.

Under the Environmental Information Regulations, the public has a more comprehensive right of access to environmental information. Requests for information can only be refused in certain limited circumstances and the basic presumption is that information will be released unless there are compelling and substantive reasons to withhold it.

However, the Environmental Law Foundation believes that not only is the UK lagging behind on the question of ratification but that even when it does ratify the Convention, its present position on access to justice will fail to meet some of the minimum standards required. In particular there is no right of appeal for local communities or interested parties in the land use planning system which is by far the most common type of environmental decision-making process.

Further, if there is the ability to take formal legal action by way of judicial review, this can only be secured on procedural, not substantive, grounds and an application for judicial review is more often than not prohibitively expensive for many people who may otherwise have a reasonable chance of a legal remedy.

For more information see www.defra.gov.uk, www.elflaw.org, www.unece.org.