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Government will face raft of human rights claims if they fail to tackle environmental pollution

Each year in London almost 9,500 people die from breathing in the City’s polluted air, according to a recent study carried out by Kings College London. It is thought that across the UK, the figure could be as much as 60,000. This is a public health emergency which prematurely kills far more people than alcohol, obesity and road traffic accidents combined, and is second only to smoking as a cause of death in the UK.

Until recently the toxic air that we breathe each day in the UK has not received much public attention. Thankfully, this issue is finally starting to garner some political and media interest following a recent landmark ruling by the UK Supreme Court ordering the Government to come up with a plan to combat toxic nitrogen dioxide levels in UK cities that breach EU safety limits.

The UK’s record on compliance with air quality standards is appalling, take this staggering example: in just the first four days of this year, London’s Oxford Street had already breached the legal limit for nitrogen dioxide levels set for the whole of the year.

Shocking as these figures are, what they do not show is the impact of long term exposure to polluted air on the vulnerable in society. And deaths caused by air pollution are just the tip of the iceberg. Higher levels of hospital admissions occur during high pollution episodes. Asthma sufferers will often notice an increased sensitivity to triggers and may see an overall reduction in their lung function from breathing polluted air. In addition to respiratory illnesses, stroke and cardiac problems, many other health impacts of air pollution are now being identified, including autism, schizophrenia and low birth weight babies.

Children and the elderly are especially vulnerable to these health effects. There is an increasingly clear causal link between poor air quality and the impairment of lung development in children, leaving those who live close to busy roads vulnerable to growing up with stunted lungs with reduced capacity. It is now suspected that the onset of asthma in previously healthy children can be attributed in part to air pollution.

There is also an emerging association between social deprivation in urban areas and increased air pollution levels. The poor are worst affected because they live in the most polluted areas. A 2012 study showed that in the areas of London which had the highest 10% of nitrogen dioxide levels, children aged 5 to 10 are 47% more likely than the London average to be eligible for free school meals.

People with disabilities are often used to adapting to cope within the set of circumstances with which they are presented. Indeed at times of particularly poor air quality, Government advice is for adults and children with lung or heart problems to stay indoors and avoid physical exertion.

I am increasingly of the view that the Government should be a little less keen to tell us to change our lifestyles to accommodate poor air quality and instead should concentrate on improving the air quality.

Sadly, in recent decades the political response has been very poor and our current Government has spent considerable time and resources in Brussels seeking to weaken the EU rules on pollution levels and to give the UK longer to comply with rules it was already breaching. Given the scale of this crisis and its disproportionate effect on already vulnerable people, as well as the cost to the UK’s health services, the Government’s failure to provide a clear and robust response is deplorable.

The UK has been in breach of EU standards on nitrogen dioxide levels since 2010. Despite this, the recent consultation with draft plans for compliance with the Supreme Court ruling case makes dismal reading. There is no real attempt to draw up a robust national plan to comprehensively address air quality; instead it shifts the responsibility to overstretched local authorities with no corresponding additional funding or powers.

The closing date for the consultation is 6 November 2015, and there will be a further discussion next year (after the Supreme Court deadline has passed) on the operation of proposed Clean Air Zones.

In the draft plans, the Government conceded that 80% of nitrogen dioxide pollution comes from road transport, which is also a key determinant of levels of particulate matter. Radical steps are needed to address the root causes of our polluted air, which should start with a credible plan to genuinely address our over-reliance on diesel.

As a Human Rights lawyer I am of the firm belief that the Government is storing up even greater problems; not only do they look set to continue to breach EU standards but they could face a raft of cases under article 2 of the European Convention on Human Rights – “the right to life”. One wonders if this is one of the reasons why they want to abandon the Convention in favour of a British Bill of Rights. I for one will be monitoring their proposals very closely in this area to see if such human rights pollution claims would still be allowed.

In recent months I have become increasingly interested in the rights of people whose disability makes them particularly vulnerable to the toxic impact of air pollution. The Government owes us a legal duty to protect us from ‘known risks’ to life, and air pollution without question constitutes such a ‘known risk’.

Of course there are resource implications in cleaning up our air, but surely the improved health of our citizens will ultimately prove a wise investment? The alternative, should the Government continue to fail in adequately addressing the risks posed by poor air quality, is likely to be an upsurge in legal challenges.