What implications will the Human Rights Act 1998 have for environment law?
Much attention in the national press has been devoted to the Human Rights Act 1998 ("Act") which came into force on 2nd October 2000. The Act incorporates the European Convention on Human Rights ("ECHR") into our domestic law, thus fulfilling one of Labour's election promises. It has been hailed as the most important legal development for this country since accession to the European Economic Community over a quarter of a century ago.
The Act will affect all areas of law and have implications for individuals, companies and public authorities alike, including commercial property holders. What is less clear are its practical implications for particular areas. The property industry should make sure it is aware of the Act and its implications. Whilst it is unlikely to bring about any immediate major changes, it will have implications for property, planning and environment law. This article focuses on the third of these and explains how the Act may impact on environment law.
Human rights not environment rights
The ECHR, which was drafted in the aftermath of the Second World War, is aimed at safeguarding the civil and political rights of individuals. Consequently none of the rights protected expressly refer to the environment. However, due to a wide interpretation by the courts, a number are relevant in an environmental context. It should be noted that they may be of relevance not only as a way of protecting the environment, but also as a means to challenge decisions taken by the State to protect the environment.
How does it work?
The Act will give effect to the rights through a number of the legal mechanisms. Broadly speaking it has three main effects: (1) courts will have to interpret all legislation consistently with the rights so far as possible - this may lead to existing environment legislation being interpreted in a different way to that previously; (2) public authorities must not act in a way so as to breach the rights - if any individual or company believes its rights have or will be breached, it may be able to complain about this and seek a remedy before the courts; (3) courts and tribunals themselves will have to act consistently with the rights - this may mean that judges will apply and develop the common law, such as the tort of nuisance, in novel ways.
Relevant rights
The Act incorporates a list of twenty rights contained _in articles of the ECHR and its Protocols. The following are likely to be most commonly used in an environmental context:
Article 6 - Right to a fair trial
This right affords procedural safeguards rather than substantive protection. It applies to both civil and criminal trials, but with greater safeguards for criminal matters. As many breaches of environment and health and safety legislation constitute criminal offences there will be scope for mounting challenges or defences to prosecutions if these safeguards (such as the privilege against self-incrimination) are not strictly adhered to by the regulatory and judicial bodies.
Article 8 - Right to respect for private life and home
This is the article that has been used with the most success in ECHR cases to complain of the effects of pollution. It has been held that pollution by fumes from a waste treatment plant, noise from aircraft or excessive light from a power station may all constitute a breach of this right. However, the right is not absolute. It is a qualified right which means that an interference with the right may be justified by the State on various grounds, including the economic well-being of the country. In practice the courts will therefore have to undertake a balancing act. This right may be used as additional ammunition by protester groups in challenges to potentially polluting developments or as a means to put pressure on environmental regulators to take effective enforcement action using the powers they already have under statute.
Protocol 1, Article 1 - Right to Property
This article guarantees the peaceful enjoyment of possessions, including not only physical property, but also intangible interests such as planning permissions or licences. This right may potentially be breached where the peaceful enjoyment of property is being interfered with by pollution from a neighbouring property. In such circumstances if the law of nuisance (either statutory or private) does not give a satisfactory remedy there is scope for using this right to persuade the courts to expand the law of nuisance. In addition, industry may try to rely on this right to challenge decisions taken to protect the environment if these interfere with its property. It may also be relevant in challenging the proposed creation of a "right to roam". However, this right is a heavily qualified right and interference may be justified by the State. Again it will come down to balancing the competing interests of the individual (or company) and the community.
Several other rights are also relevant including the Article 2 right to life and Article 14 right freedom from discrimination in respect of protected rights.
Conclusion
It is important for the property industry to be aware of these rights and to anticipate the subtle changes in the law which the Act may bring about. It may be of use to the industry in certain cases, whilst in others it may provide ammunition to those who seek to challenge it. In addition, of course, the Act will have wider reaching implications for land owners which also happen to fall within the category of "public authorities" in the exercise of some or all of their powers.
For further information, please contact David Short at david.short@cms-cmck.com or on +44 (0)20 7367 2535.
