The UK Bill of Rights: Changes to Human Rights Protection may Impact Climate Litigation

by | May 22, 2023

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About Patrick Kenny

Patrick is an English-qualified solicitor specialising in competition, environmental, and public law litigation. He has worked as a lawyer in private practice, the public sector, and the not-for-profit sector, both in the UK and abroad. He holds an LLM from BPP University and a BA in Arabic and Islamic Studies from the University of Oxford.

Across the world, human rights-based arguments are increasingly deployed in climate litigation against public bodies. However, in the UK, potential reforms to the Human Rights Act 1998 (HRA) – an Act which allows claimants in domestic courts to rely on the European Convention on Human Rights (ECHR) – could seriously impact the ability of these cases to succeed in the future.  

The ECHR and climate litigation

Human rights-based climate cases brought in the UK have generally relied on the ECHR, particularly the rights to life and to respect for private and family life, which are enforceable in the UK via the HRA. These cases, including R (Richards) v Environment Agency and R (Plan B Earth) v The Prime Minister, have generally been unsuccessful. Impediments to such claims include:

  • a relatively narrow interpretation of States’ positive obligations (duties to take active measures to prevent rights breaches);
  • applicants demonstrating ‘victim status’ where climate harms are disparate or undetermined; and
  • the ‘margin of appreciation’ afforded States by the European Court of Human Rights (ECtHR).

However, this could soon change. Cases in the ECtHR have previously succeeded in arguing that localised environmental harm breaches the ECHR (e.g. pollution from a particular factory in Cordella v Italy) but there are now several more ambitious cases before the ECtHR challenging national climate policies. Judgments in these cases could allow for a more expansive reading of human rights in the climate context, especially by clarifying how the issues listed above are interpreted. Particularly given that the ECHR is considered a ‘living instrument… [to] be interpreted in the light of present-day conditions’, it seems possible that the ECtHR could develop its case law in this field.

A new ‘Bill of Rights’

The Bill of Rights (BoR), currently before the UK parliament, would repeal the HRA and substantially amend the way in which the ECHR is given effect in the UK, likely making it more difficult to litigate climate cases through the lens of human rights. Whether this bill will become law, given changes to government personnel, remains to be seen. However, given its potential impact and that it represents the most detailed articulation of what HRA reform could result in that we have yet seen, it is important to examine how its provisions could impact UK climate litigation. Such analysis should allow for a better understanding of any future, similar proposals even if the BoR itself is amended or redrafted.

The BoR contains no equivalent to sections 2 or 3 of the HRA, which require courts to take ECtHR jurisprudence into account and (as far as possible) to interpret legislation in a manner compatible with the ECHR. Instead, Clause 3 of the BoR explicitly permits domestic courts to deviate from ECtHR jurisprudence. Were the ECtHR to issue judgments that demanded more of States in tackling climate change – by interpreting victim status more generously, for example – UK courts could therefore maintain a more conservative domestic approach under the BoR.

Clause 5 of the BoR prohibits courts from establishing ‘post-commencement’ positive obligations. If BoR provisions were enacted and the ECtHR subsequently ruled that positive obligations, such as those regarding the right to life, require States to undertake ambitious climate plans, UK courts would be prohibited from following that interpretation.

Additionally, pre-commencement positive obligations could be weakened. As mentioned, ECtHR jurisprudence holds that States do owe positive obligations to prevent localised environmental harm. Domestic courts can continue applying pre-existing interpretations of positive obligations under Clause 5, but how the courts interpret these pre-existing obligations is important: if they extract only narrow principles from previous judgments, confining them to their facts, the requirements on UK public authorities to address environmental harm could be reduced.

Finally, Clause 5(2) of the BoR requires courts to consider various factors (including the impact on public authorities’ ability to perform their functions) before applying a pre-commencement interpretation of a positive obligation. UK courts could consider that existing obligations in respect of specific environmental harms are too burdensome given Clause 5(2)’s criteria.

Such deviation could result in more instances where UK cases are brought before the ECtHR and more findings that the UK has breached its ECHR obligations. In consequence, there are two plausible paths of action: firstly, the UK may decide to comply with ECtHR rulings. This could mean the BoR’s effects are reduced but only if UK claimants do pursue unsuccessful domestic claims in the ECtHR. Alternatively, the UK could refuse to comply with ECtHR rulings, thereby breaching international law. How this would operate in practice is difficult to predict and may depend on the particular issue or politicians involved. Regardless, the proposed Bill will have significant implications for the UK if it is enacted, and will have important consequences for the future of domestic climate litigation under the auspice of human rights. 

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