Court of Appeal finds no breach of positive human rights duties

The Court of Appeal has allowed an appeal by the Environment Agency ("EA") and set aside a declaration made by the High Court which had required the EA to take certain actions in order to comply with positive obligations under Articles 2 (the right to life) and 8 (the right to private life) of the European Convention on Human Rights ("ECHR"), as incorporated into English law by way of the Human Rights Act ("the HRA").

Key Points

• The role of the Court under the HRA is to determine whether a public authority is acting unlawfully by acting in a way which is incompatible with a person’s ECHR rights. An act includes a failure to act.
• If it is to be found that a public authority is acting, or is proposing to act, unlawfully, there must be a proper evidential basis for that finding. The Court’s role is to adjudicate on whether a claim as brought is made out, and, if so what remedy is appropriate
• Courts must take the greatest care not to exceed their function, especially in cases relating to the regulation of dangerous industrial activities where the subject matter is complex and technical.
• It is not the Courts' role to dictate precise measures which should be adopted by public authorities in order to comply with their positive duties under the ECHR.

Background

The Claimant, a young child, suffered from severe respiratory problems.  His life expectancy was at risk of being significantly reduced because of exposure to hydrogen sulphide emissions from a landfill site near to where he lived which operates under a permit from the EA. The EA recognised and accepted that there was an issue with the emissions and steps had been and continue to be taken to rectify this.

The High Court in August 2021 held that positive operational duties upon the EA were triggered under Articles 2 and Article 8 of the ECHR. Whilst those Articles had been triggered, the High Court declined to find that there had been a breach of either Article. Nonetheless, it granted a declaration that the EA was required to implement the advice of Public Health England ("PHE") as to the specific levels and target dates for reduced emissions in order to comply with its legal obligations under the ECHR. See our commentary on the judgment.

The EA appealed to the Court of Appeal. It contended that:

1)     The Court erred in concluding that the declaration was justified and appropriate. It should have been for the EA as the statutorily appointed and expert regulator to determine what further actions were required to reduce the levels of hydrogen sulphide to acceptable levels, taking into account the PHE guidance (the "First Ground").

2)     The Court erred in granting a declaration in circumstances where there was no finding of any past or current breach of the EA's obligations, as without a breach there was no proper basis on which to grant a declaration (the "Second Ground").

In a cross appeal the Claimant contended that: (1) the Judge had found that the EA was in breach of its obligations under the ECHR and therefore was right to grant the declaration, or (2) alternatively, if the Judge had not found that there was a breach of the ECHR, he was wrong in failing to find a breach.

Judgment

The Court of Appeal granted the EA's appeal on both grounds.

First Ground

The Court of Appeal explained that the Court's role under the HRA is to determine whether a public authority is acting unlawfully in contravention of an individual's ECHR rights, and to then determine the appropriate remedy. In this case its role was to determine whether the EA had acted unlawfully by acting incompatibly with the Claimant's rights under Articles 2 and 8 of the ECHR. However, the Judge at first instance instead "sought to define the legal content of the obligation" by electing the advice given by PHE to a legally binding standard and prescribing the actions and timeframes for reducing emissions that the EA was legally required to comply with. In doing so, he had exceeded the scope of the Court's function under the HRA as it was not the Court's role to prescribe such standards.

The Court of Appeal held that the Judge had acted contrary to principles established in the European Court of Human Rights in Budayeva v Russia (2014) 59 EHRR 2 ("Budayeva") and Fadeyeva v Russia (55723/00) (2007) 45 EHRR 10 ("Fadeyeva") on the appropriateness of judicial intervention in the regulation of dangerous industrial activities. In Fadeyeva it was held that it is not the Court's task to determine what exactly must be done or what precise measures must be taken to reduce pollution. Similarly, in Budayeva the Court held that the choice of means of rectifying the unlawfulness was for the state to decide. On this basis the declaration granted by the Judge was set aside.

Second Ground

The Court of Appeal noted that declarations are commonly used as a remedy in judicial review cases where a public authority is acting, or proposing to act, unlawfully. In exceptional cases, an advisory declaration may be granted to clarify the law on a certain issue. Section 8 of the HRA states that "in relation to any act (or proposed act)" that is deemed unlawful, the Court can grant just and appropriate relief. Therefore, there should be an unlawful act or proposed act for declaratory relief to be granted.

It was held that on a fair reading of the High Court judgment, the Judge did not find that the EA had breached any of its obligations under Articles 2 or 8 of the ECHR at the date of the hearing, nor was there basis to say it was proposing to act unlawfully. In fact, the Judge had expressly declined to make such a finding. Moreover, an advisory declaration to clarify a point of law was not sought by the Claimant and in any case would not have been appropriate given the issue involved deciding what action to take in a complex regulatory and technical sphere. Therefore, the declaration granted was neither justified nor required to remedy any unlawful act or failure to act as one did not exist.

Cross Appeal

The Court of Appeal found that there was no proper basis upon which a Court could find that Articles 2 and 8 had been breached, or that the EA proposed to act in breach of its obligations under those Articles. The cross-appeal was therefore dismissed.

Comment

The Court of Appeal's judgment affirms that the Court's role in claims alleging breaches of the HRA is to adjudicate on whether the public authority is acting unlawfully by acting, or failing to act, in a way that is incompatible with a person's ECHR rights. To go further and define the legal content of the positive obligation wrongfully exceeds the Court's role, and the Court of Appeal has emphasised that the Courts must take great care not to do so.