Power to the public

The first meeting of the parties to the Aarhus Convention took place on 21-23 October in Lucca, Italy. Attendance at the first meeting was good (Michael Meacher went from the UK) and, as well as signatories to the convention, included representatives of a number of non-governmental organisations (NGOs). A draft declaration has already emerged emphasising the importance of partnerships and the role of the public in environmental decision-making, and urging the removal of practical obstacles such as cost barriers and lengthy procedures.

The convention has not yet been ratified by the UK, the European Commission (EC) or many of the Western countries in the United Nations Economic Commission for Europe (UNECE). However, it was brought into effect very rapidly (slightly more than three years after adoption) following ratification by a large number of states from the Commonwealth, including a large number from the Commonwealth of Independent States. It is anticipated that ratification by many of the other signatories will take place over the next year.

There is currently a great deal of activity taking place to make the necessary amendments to legislation in order to be able to deliver the obligations of the convention. The UK has just finished a consultation exercise on new environmental information regulations and the EC has draft directives or proposals on all three of the 'pillars' of the convention.

So, is the convention, as UN Secretary General Kofi Annan described it, "the most ambitious venture in the area of 'environmental democracy' so far undertaken under the auspices of the United Nations (UN)," or is it ultimately a convention that may lead to unreasonable intervention by third parties and NGOs in court and decision-making proceedings? Perhaps the reality is more likely somewhere between the two.

The convention is regional in scope in that it is open to signature by states that are members of UNECE, but also states having consultative status with the commission. There had been some suggestion that the convention could serve as a possible model for implementation of Principle 10 of the Rio Declaration in other regions of the world. Although this was not ultimately pursued, the convention is considered by many to be global in its significance.

The full title of UNECE's convention is the 'Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters'. It consists of three distinct but related 'pillars':


1. Access to information

In some respects this is the easiest of the three 'pillars' for parties to the convention to deal with in that there has been an EC directive in place on the topic since 1990 (Directive 90/313/EEC on Public Access to Environmental Information). Public bodies, to which the UK implementation legislation and guidance applies, have experience of managing information requests and, importantly, the exceptions where disclosure will not be made. Although the directive and implementation regulations refer to replies being made within two months of the request, there are still horror stories, such as it taking five months to obtain a five-page document from a Government department.

A directive to replace 90/313/EEC is in the conciliation process. It is designed not only to enable the convention to be ratified, but also to correct some shortcomings of the original directive and also to adapt to developments in information technologies. Section 74 of the UK Freedom of Information Act 2000 included a power to create regulations to implement the information provisions of the convention. The consultation period of draft UK regulations ended in early October.

The convention goes further than 90/313/EEC and addresses some of the areas where the directive has been criticised as being flawed or open to abuse. For example, time limits for responses are to be shortened to one month at the latest following the request. The definition of 'public authorities' should make it clear that the convention provisions apply to privatised utilities.

Article 4 places a general duty on parties to ensure that information is made available upon request and that no interest needs to be stated in order to be entitled to receive it. Grounds for refusal of a request are also set out in Article 4 and are more restrictive than 90/313/EEC. For example, where it would adversely affect commercial or industrial confidentiality, the request can be refused where it is "protected by law in order to protect a legitimate economic interest". However, where the information relates to emissions and is relevant to the protection of the environment, then the grounds for refusal do not apply. (The draft UK regulations also include a rebuttable presumption that the public interest in disclosing information outweighs the public interest in refusing a request on commercial confidentiality grounds.)


2. Public participation

Article 6 will look familiar to those who have experience of environmental impact assessment. It requires parties to ensure that the public concerned are informed early in an environmental dicision-making procedure of the factual and procedural issues associated with the decision. This public participation must include reasonable time-frames and the public authority taking the decision must ensure that "due account" is taken of the outcome of the public participation. Article 7 deals with public participation concerning plans, programmes and policies. Article 8 deals with public participation in the preparation of executive regulations.

A draft directive (COM(2000) 839 final) proposes to make provision for a public participation procedure in respect of plans and programmes under various environmental directives, in particular those dealing with waste, such as the Landfill Directive. It also proposes to amend the public participation provisions already existing in the Environmental Impact Assessment Directive (85/337/EEC) and the Integrated Pollution Prevention and Control Directive (96/61/EC).


3. Access to justice

Article 9 is intended to provide the public with access to review procedures when its rights to information and participation have been breached, and in some cases to challenge more general violations of environmental law. The draft UK regulations deal with this in a schedule setting out the role of the Information Commissioner (Section 18(1) of the Freedom of Information Act 2000) in deciding if a request for information has been dealt with in accordance with the regulations. There is provision for an appeal from that decision to the Information Tribunal (Section 18(2) of the Freedom of Information Act 2000).

Issues such as standing and exposure to costs of legal review procedures are at the centre of the debate on access to justice. This is the part of the convention where there is scope for the greatest change. Article 9(2) requires that those members of the public concerned, "having a sufficient interest", have access to a review procedure to challenge the "substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6". Remedies are to be "adequate and effective", and include "injunctive relief as appropriate", which must be "fair, equitable, timely and not prohibitively expensive". A tall order for any judicial review process.


Conclusion

In summary, the provisions of the convention do hold considerable potential for extending third party rights to object to decisions on a wide range of environmental matters. Legislation to put in place provisions enabling the parties to comply with the convention will need to be scrutinised carefully and the role of the public in decision-making should not be underestimated.

Kathy Mylrea is a partner at Simmons & Simmons