Human nature/Safe harbour

The environment is not an area that springs to mind when human rights are mentioned, but as Stephen Grosz explains, many such cases have come before the court in Strasbourg

Being primarily concerned with civil and political rights, the European Convention on Human Rights has not so far been a major engine of change in the environmental field.

Environmental law was not in the minds of the drafters of the Universal Declaration of Human Rights, on which the Convention is based, and neither document guarantees a right to a clean or diverse environment as such.Some aspects of environmental protection depend heavily on specialist knowledge and on a difficult balancing of economic and policy factors that courts, particularly a supranational court, are ill-equipped to determine.So it is not surprising that both the European Commission and Court of Human Rights in Strasbourg have taken refuge behind the 'margin of appreciation', their version of subsidiarity, by which international judges pay due deference to the local decision-maker (Handyside v UK 1 EHRR 737).

Indeed, the margin in relation to this area has been held to be quite wide (Fredin v Sweden (1991) 13 EHRR 784, paragraph 51).Significantly, however, commentators on the Human Rights Act 1998 appear to be unanimous in considering that domestic courts should not use the margin in the same way when applying the Act.Nonetheless, over the past ten years, the importance of environmental protection has begun to feature in decisions emerging from Strasbourg.

Thus, the court has recognised that the requirements of environmental protection are capable of justifying interference with other rights, acknowledging that 'in today's society the protection of the environment is an increasingly important consideration' (Fredin, paragraph 49), which may, for example, justify control of the use of property.Where measures of environmental protection interfere with respect for private life or the home, Strasbourg has recognised that such interference pursues the legitimate aims of 'public safety, the economic well-being of the country, the protection of health and the protection of the rights of others' (Buckley v UK (1997) 23 EHRR 101 paragraph 63).Recognition of a positive right to a clean environment has been slower in emerging.

There has, however, been some movement in the past decade, relying largely on the right to respect for private life and the home.

The court's initial recognition that environmental pollution may affect Convention rights dates back to 1990, when it accepted that noise generated by aircraft using Heathrow airport adversely affected nearby residents' right to respect for private life and the scope for enjoying the amenities of their homes (Buckley paragraph 40).

While the court went on to find that the use of the airport was amply justified, the case represents the starting point for the current approach to environmental protection under the Convention.Although the right to environmental protection is tied to a person's right to respect for his or her 'home', this term is not limited to a place of permanent residence; it can also apply to a person's place of business or work (Niemietz v Germany (1993) 16 EHRR 97 paragraph 30).

The court has not yet resolved the question of how much further the concept of private life will go in this respect, particularly where an applicant is seeking to impose obligations on the state to take positive steps to protect the right (see below).

In a recent case, the court appeared to place limits on the future development of this area, indicating that positive obligations may be imposed only where there is a 'direct and immediate link between the measures sought by the applicant and the latter's private and/or family life' (Botta v Italy (1998) 26 EHRR 241 paragraph 34).So far, environmental conservation has featured in the case law only as a justification for interference with property or home, but has not given rise to any positive obligations, nor to an obligation to abstain, for example from destroying a habitat.

To date, the focus of the Strasbourg case law has been environmental pollution.The Heathrow case concerned noise pollution.

Lopez-Ostra v Spain ((1995) 20 EHRR 277) concerned the emission of noise, fumes and smells from a waste treatment plant.

Although the emissions in that case caused certain health problems, the court expressly rejected the submission that a serious adverse effect on health is an essential ingredient before Article 8 could be engaged (Lopez-Ostra paragraph 51).

Guerra & others v Italy ((1998) 26 EHRR 357) concerned a chemical factory which released inflammable gases in the course of its production cycle, which could lead to explosions and the release of poisonous gases.The court held that Article 8 was engaged by the direct effect of these toxic emissions on the private and family lives of the applicants, who lived in the same town one kilometre from the factory.In another case, the Commission held that Article 8 applied where serious dust contamination caused by construction of the Limehouse link meant that residents could not use their gardens or open their windows (Khatun & others v UK (1998) EHRR CD 212).Clearly, any kind of environmental pollution which seriously affects the quality of a person's life is likely to be regarded as coming within the scope of Article 8, even without serious health consequences.

Positive and negative environmental obligationsThe Convention is primarily intended to protect the rights of individuals from 'interference by a public authority' (an expression which has a wide meaning under s.6 of the Act).

At first sight, therefore, the Convention appears only to oblige a public authority to refrain from polluting activities of its own.

But the court has also imposed on states certain positive obligations, not only to refrain from acting, but on occasion to take positive action to secure enjoyment of the right.

In terms of Article 8, the Commission and the court have used the notion of 'respect' as the vehicle for this development (see B v France (1993) 16 EHRR 1 and Botta).

In practice, this means that public authorities must take preventive, remedial or enforcement measures to protect an individual from pollution, and it may have to intervene even where the source of environmental pollution is another private individual rather than the state itself.

Whether the case is one of interference by a public authority or its failure to intervene, the court has applied the same considerations, namely whether the state has struck a fair balance between the rights of the individual and the general interest of the community, or the rights of some other individual.

There is scope for creative development of the law on both positive and negative obligations.

Some of the prime candidates are considered below.

Consents for planning, licensing and highwaysWhere an adjoining occupier can show that the grant of a consent will affect the value or enjoyment of his land, Article 6 - which guarantees the right to a fair trial - will entitle him to certain procedural rights (Ortenberg v Austria (1995) 19 EHRR 524; Zander v Sweden (1994) 25 EHRR 371).

It is questionable whether the present planning or licensing appeal system guarantees fair trial rights: planning inspectors are not 'independent' as Article 6 requires (Bryan v UK (1996) 21 EHRR 342); a disappointed developer or licence applicant has rights of appeal on the merits while objecting neighbours can only apply for judicial review; and it will be argued that the principle of 'equality of arms' will require objectors to be given legal assistance in cases involving substantial, complex and highly technical issues (see R v Secretary of State for the Environment, Transport and the Regions, ex parte Challenger, The Times, 11 July 2000, in which Harrison J refused to rule on the issue since the HRA was not yet in force, even though the inquiry will continue after the coming into force of the Act).

But as well as affording interested parties a right to be heard, the state has a positive obligation to protect, or respect, the private and family lives and homes of individuals.

Factors engaging the government's responsibility in Lopez-Ostra included the fact that the authorities had allowed a polluting plant to be built on its land and had also subsidised its construction.

I suggest that Article 8 imposes on planning and other licensing authorities an obligation to take account of, and protect, the rights of individuals affected when making their consent decisions.

This means that an authority will have to establish:l whether the activity for which consent is sought interferes with any Convention rights;l whether the interference pursues a legitimate aim, such as economic well-being or the rights of others to enjoy their property; andl what is the proper balance between the competing rights - whether the restriction on one is proportionate to the benefit to the other.

This may well involve a departure from the present approach.

Further, where competing rights are in play, the balance should not be determined by the application of a presumption in favour of the grant of consent, leaving the burden of opposition to objectors.

Nor can an authority simply assume that the absence of any objections means that there are no competing interests.

It must be pro-active in considering the protection of competing rights.This may well have an important effect, for example, in inner cities where authorities have to deal with areas of considerable social deprivation, whose residents do not have access to the kind of resources available to public authorities or developers; or where the number and complexity of applications place effective objection beyond the capability of even the most resourceful of neighbours.

Public authorities will have to adapt their procedures to this end.

Inequalities in the planning and licensing process may well lead to calls for legal aid for objecting neighbours.

Discretion to enforce planning and environmental controlIn some cases, the court has held that the Convention imposes an obligation to apply effective sanctions to protect rights or to punish interference; and that in cases of the most serious interference, only criminal sanctions will provide an effective deterrent (see X & Y v Netherlands (1986) 8 EHRR 235 - the case concerned sexual abuse).Environmental regulators have a wide discretion over whether or not to bring enforcement proceedings, and at present it is hard to challenge a refusal to act.

The decision in Lopez-Ostra, however, suggests that they have a duty to take effective enforcement action to protect Convention rights.

Exercise of the prosecutorial discretion will be challengeable not only on Wednesbury grounds but on the ground that failure to take action is a breach of the positive obligation under Article 8.

Moreover, criminal courts applying environmental protection legislation will likewise have to bear in mind the need for effective deterrence when determining the appropriate level of fines.

Access to environmental informationThe Convention contains no express guarantee of freedom of information.

Although Article 10 refers to the right to receive information, it creates a positive entitlement only to information which someone else is willing to impart (Leander v Sweden (1987) 9 EHRR 433 paragraph 74).

In Guerra, however, the court held that in certain circumstances, an individual may derive a right to receive official information from Article 8 (see also Gaskin v UK on access to information).In Guerra, residents wanted access to information about the risks from a local chemical factory and about what was to be done in the event of an accident at the factory.

The court regarded this as essential information which would enable them to assess the risks of continuing to live in the town.

In failing to provide it, the state had not fulfilled its obligation to secure the applicants' right to respect for their private life.It is unlikely that the Convention will ever provide rights of access to information more extensive than those available under Directive 90/313/EEC or the Aarhus Convention, but it may nonetheless have an effect.In the first place, it will be necessary to ensure that exceptions to access rights are construed narrowly so as to give full effect to Convention rights.

Perhaps more important, Article 8 rights of access may well have an impact on the vexed question of the level of charges which may be levied for the provision of information.The court has consistently held that the object and purpose of the Convention is to protect rights that are 'not theoretical or illusory but practical and effective' (see Artico v Italy, 13 may 1980, series A no 37, pp15-16, (1980) 3 EHRR1 33, and more recently, United Communist Party of Turkey and others v Turkey, 30 January 1988, Reports of Judgments and Decisions 1998, pp18-19 (1998) 26 EHRR 121 33).

In particular, where complex environmental information is concerned, the right of access could be defeated if public authorities were able to pass on the economic cost of obtaining or providing the information.Indeed, in another case, the court has said that states have an obligation under Article 8 to establish 'an effective and accessible procedure' by which those who have been involved in hazardous activities on the state's behalf can obtain all relevant and appropriate information on the possible consequences for their health (see McGinley & Egan v UK (1999) 27 EHRR 1, concerning nuclear testing).

Private law nuisanceIn order to establish a cause of action in nuisance, a claimant has to show that he has an interest in land (Hunter v Canary Wharf Ltd (1997) 2 All ER 426 HL - but see the dissenting judgment of Lord Cooke in Thorndon as to human rights issues).

However, the right to respect for the home can be asserted by anyone who is a resident, even if they do not have rights of ownership (Mentes v Turkey (1998) 26 EHRR 595).

The claimants in the failed Limehouse link litigation took their case to the Commission, which decided that their right to respect for their homes was engaged even though they had no interest in land (Khatun; the Commission declared the application inadmissible because it considered that a fair balance of interests had been struck in that case).

The law of nuisance may have to be revisited if courts are to secure effective protection of Convention rights (see also Whiteside v UK (1994) 18 EHRR CD 126 - state's failure to remedy serious and persistent harassment).

Remedies under the ActWhere a court finds that an authority has violated or proposes to violate a Convention right, s.8(1) provides that it 'may grant such relief or remedy, or make such order, within its powers, as it considers just and appropriate' (compare the wording of s.37(1) of the Supreme Court Act 1981 ('just and convenient') relating to the power to grant injunctions).

Despite the limits which the rest of s.8 seeks to place on the award of damages, the Lord Chancellor, Lord Irvine, accepted in the course of debate that the courts' remedial powers are 'of the widest amplitude' (Hansard, HL 19 January 1998 column 1266).

Article 41 of the Convention, to which s.8 refers, embodies a principle that there should be full reparation for the consequences of a violation.

The effect of s.8(3) is to direct our courts to seek to achieve the aim of full reparation primarily by non-pecuniary remedies, leaving damages (including damages for non-pecuniary loss) as a last resort.This may prompt courts to develop and adapt their remedial powers in more imaginative ways in order to achieve reparation other than by awarding damages, in particular when faced with systemic issues affecting a large group of people in a complex area of social policy.The inherent jurisdiction of the High Court offers the possibility of creative development of remedies.

In practice, any court with power to grant injunctions will have similar opportunities.

By contrast, a tribunal whose jurisdiction is limited by statute will find such development more difficult, but not impossible.Any such tribunal could indicate the steps which it expects the respondent to take, and adjourn for a specified period to allow them to be taken.

Taking, or failure to take, the desired steps might affect its decision as to damages.

Stephen Grosz is a partner at London law firm Bindman & Partners.

Safe harbour

In our second feature on human rights, Alison Stanley looks into the effects the new legislation will have on immigration issues

The European Convention on Human Rights (ECHR) is a familiar weapon in the armoury of most immigration lawyers: successful challenges in immigration cases have been brought under the ECHR for many years.

Nevertheless, the Human Rights Act 1998, which incorporates the ECHR into UK law, presents a major shift in the way in which decision-makers (including the Home Office, the Immigration Service and the Immigration Appellate Authority) have to approach decision-making.As Jonathan Cooper of Justice has put it, decision-makers will no longer merely be able to ask 'does the law permit me to take this action?', followed by 'am I following the right procedures in making this decision?', and finally 'is the decision I am about to make so perverse that nobody else would or could reach such a decision?'.

Now, the decision-maker will also have to ask: 'Are an individual's human rights involved, and if so, can I legitimately interfere with them?' (Jonathan Cooper, The Convention: a new way of thinking, paper delivered at the Human Rights Act and Immigration and Asylum Law seminar, 3 December 1999, Justice and Two Garden Court Chambers)As well as this shift in the manner of decision-making, immigration practitioners also have to come to grips with the most significant changes in the immigration appeals system since its inception.

As the Human Rights Act comes into effect, s.65 of the Immigration and Asylum Act 1999 will also come into force.

This provides a right of appeal on human rights grounds in immigration and asylum cases.Obviously, many asylum cases will raise human rights issues, but s.65 will also apply to overstayers (who at the same time will lose their current appeal rights under s.15 of the Immigration Act 1971) and to illegal entrants.

In effect, the distinction between illegal entrants and overstayers will be removed.Practitioners will need to be alert to potential human rights arguments and to plead them both in representations to the Home Office and in immigration appeals.Probably the most fruitful areas for exploration by immigration lawyers will be in the context of asylum and others at risk, and in cases involving families.

AsylumMost asylum cases will involve a potential breach of Article 3 which prohibits torture, and inhuman and degrading treatment or punishment.

No derogation from or exception to this article is permitted.In Ireland v UK ((1979-80)2 EHRR 25), the European Court of Human Rights in Strasbourg gave guidance as to the meaning of each of these elements: torture is defined as deliberate inhuman treatment causing very serious and cruel suffering; inhuman treatment or punishment is treatment that causes intense physical and mental suffering; and degrading treatment or punishment is treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance (see Keir Starmer, European Human Rights Law, LAG 1999 pp506-507).The definition is different from that of persecution in asylum, where a successful applicant must demonstrate a well-founded fear of persecution for one of five grounds: race, religion, nationality, membership of a particular social group or political opinion.

In the ECHR, there is no need to demonstrate that the mistreatment was due to an individual being a member of a particular social, political, ethnic or other group.In one of the earliest immigration cases taken against the UK (that of the East African Asians), the Commission held that serious discrimination on grounds of race can amount to degrading treatment within the meaning of Article 3 (see East African Asians v UK (1981) 3 EHRR 76; Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471; in Smith & Grady v UK the court confirmed that discrimination may violate Article 3 in certain circumstances).

This encompasses serious discrimination on other grounds, such as sex or, potentially, sexual orientation.The refugee definition has been interpreted with increasing narrowness in the UK courts, most recently in the House of Lords case of Horvath v Secretary of State for the Home Department (6 July 2000).

In the UK, the Refugee Convention has been held not to cover those fleeing civil war (Adan (1998) INLR 325) or severe racially discriminatory mistreatment at the hands of non-state agents, where the state cannot provide protection (Horvath).By contrast, the state's responsibilities under the the ECHR are engaged even where the threat of treatment contrary to Article 3 in the receiving state emanates from non-state agents (HLR v France (1997) 26 EHRR 248).

This makes the use of Article 3 even more essential, as if individuals were to be returned home in these circumstances, it would be a clear breach of Article 3.

In extreme cases, Article 3 could be violated by sending a gravely ill person to a country where there is no adequate health provision (D v UK (1997) 24 EHRR 423).A further distinction from the Refugee Convention is that once an Article 3 risk has been shown, there is a total prohibition on the state returning an individual.

The state is not allowed to take into account any balancing issues, such as the risk to public order or the individual's immigration history (see Chahal v UK (1997) 23 EHRR 413).

In contrast, an otherwise well-founded applicant can be excluded from the protection of the Refugee Convention on a number of grounds.

Family casesArticle 8 guarantees the right to respect for private and family life and is of particular use in cases of deportation or removal and family reunion.

The first question that arises is whether there is a family unit worthy of protection.

The family clearly encompasses the conventional married family, but extends to relationships between parents and dependent children.A divorced father, for example, who is not living with his children, can nevertheless be said to have a family life worthy of protection (Berrehab v Netherlands (1989) 11 EHRR 322).

The Strasbourg court has also found a 'family' in the case of a long-term unmarried and cohabiting couple with a child (Kroon v Netherlands (1989) 11 EHRR 263).

Conversely, and somewhat out of step with developments in the UK, gay and lesbian couples have not been found to have a family life, instead raising issues of private life, which attract a lower level of protection (see X and Y v UK (1983) 32 DR 220 and regarding transsexuals, X, Y and Z v UK (1997) 24 EHRR 143).

It is likely that this will attract a challenge under Article 14, which prohibits discrimination.In contrast to Article 3, Article 8 rights are not absolute: the state can justify a breach under Article 8(2), where this is necessary for the prevention of disorder or crime.

In applying this test, the principle of proportionality applies, and the decision-maker will take into account an individual's immigration history as well as other public order or criminal considerations.

The decision-maker should also consider the extent to which family life will be ruptured and the possibility of carrying out family life elsewhere.

DetentionThe right to liberty enshrined in Article 5 has resulted in significant changes in the rights of Immigration Act detainees.

The fundamental legislation on which immigration law is built (the Immigration Act 1971) contains extensive powers to arrest and detain for an unlimited period.

These powers were extended in the Immigration and Asylum Act 1999.

The 1971 Act had little in the way of protection for Immigration Act detainees and although the Asylum and Immigration Act 1996 extended the right to apply for bail to most detainees, there was no presumption in favour of bail.

In a clear attempt to head off applications under Article 5 of the ECHR, s.44 of the 1999 Act provides for a system of routine bail hearings and s.46 for a general presumption in favour of bail.The date for the introduction of this part of the 1999 Act has been postponed, and it remains to be seen if in practice the new system will comply with the right to judicial review of detention as set out in Article 5 (4).

The requirements are:l the power to detain must be clear, precise and foreseeable;l there must be adequate safeguards against arbitrary detention;l proper reasons for detention must be given;l there should be a presumption of liberty and the burden of proving that continued detention is lawful must be on the authorities; andl there must be a speedy and effective right of review, with legal assistance where necessary.

DiscriminationThe concept of discrimination in the ECHR is different from that in domestic law relating to sex and race: Article 14 prohibits the treatment of people differently where this is not justified.

The prohibition on discrimination contained in Article 14 is not a free-standing right; it can only be engaged in relation to another Convention right.

However, even if the substantive right is found not to have been violated, Article 14 can still be infringed.An example is the Abdulaziz case (see above) concerning the refusal of entry to foreign husbands of women settled in the UK.

Men in an identical position were entitled to sponsor their wives to join them.

This was held to be a violation not of Article 8 (the right to family life) but of Articles 8 and 14 together.

The government dealt with this finding by removing the right of entry to wives as well as husbands, thus removing the element of discrimination.The prohibition on discrimination may be useful in protecting women asylum seekers, who may receive less favourable treatment than men in, for example, the failure to provide female interpreters or interviewing officers, or in dispersal and support arrangements, which may impact more severely on women, especially those with dependent children.

The Immigration Appellate AuthorityThe main uncharted area in immigration and asylum law and the Human Rights Act will be its impact on the Immigration Appellate Authority.

The authority is a public body and its decisions will be liable to attack on human rights grounds.

To date, the Strasbourg court has considered that immigration rights do not raise issues under Article 6, the right to a fair trial - however this may shortly be reconsidered.This is likely to be just one of the areas that immigration practitioners will be able to exploit after the Act comes into force on 2 October 2000.

The challenge will be to identify those cases where it can be used creatively.

Alison Stanley is a partner at London firm Bindman & Partners