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State Failures To Tackle Climate Change In Breach Of Right To Private And Family Life

On 9th April 2024, the Grand Chamber of the European Court of Human Rights delivered its judgment in three linked cases brought against member states of the Council of Europe. The claims were based on State failures to tackle climate change and mitigate against the risks posed by the climate crisis.

Article 8 of the European Convention of Human Rights protects the right to respect for a person’s private and family life, their home, and their correspondence.

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland was brought by a Swiss Association established to campaign for climate change protections, and four individual women (also members of the Association) who suffered from health problems exacerbated by heatwaves which significantly affected their lives.

The other cases were Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Others. Both of these cases, and the claims bought by the four individual Swiss women, were declared inadmissible based on technicalities. The Association was found to have standing (the legal right to bring the claim) as it met the ‘victim-status’ criteria under the Convention.

A number of legal arguments were advanced on behalf of the applicants. The substantive issues in the Court’s judgment were around Article 8.

The Court ruled that, as a matter of fact, climate change exists; poses a serious current and future threat to Convention rights; and that States are aware of this and are capable of taking measure to effectively address it. Current mitigation efforts are not sufficient to meet the target of 1.5 degrees Celsius above pre-industrial levels.

Article 8 of the Convention includes a right to effective protection by State authorities. The Court found that this includes a right to effective protection from the serious adverse effects of climate change on their lives, health, wellbeing and quality of life. This includes a duty to adopt and practically apply measures to mitigate the existing and future effects of climate change.

The Court referred to international commitments of Member States, including the UN Framework on Climate Change, the 2015 Paris Climate Agreement, and the advice provided by the Intergovernmental Panel on Climate Change.

It referenced failures by Switzerland to take compelling scientific evidence concerning climate change into account, and failures to implement measures – for example, through limitations to greenhouse gas emissions – to meet their positive obligations to protect and advance the right to a private and family life under Article 8.

Impact on UK Law

The UK is a signatory to the European Convention on Human Rights, and a member of the Council of Europe. Although often mistakenly linked, the Council of Europe is not the same as the European Union. Many countries are members of the Council of Europe, but not the European Union (for example, Azerbaijan, Turkey, and Ukraine are members. Russia was a member until 2022).

Even post-Brexit, British and Northern Irish residents have the protection of the Convention and the rights set out therein. They also have the right to apply to the European Court for a decision where they believe the UK Government are acting in breach of their Convention rights.

The Human Rights Act 1998 incorporates the European Convention on Human Rights into domestic Law. Section 6 of the HRA requires public authorities to act in accordance with Convention rights unless domestic law provides otherwise. This Judgment against Switzerland now forms part of the body of European case law, which domestic courts will consider when considering asserted breaches of Article 8.

In recent years, the Government has been rolling back on green policies, including issuing hundreds of new oil and gas licences, and stepping back on policies aimed to phase out petrol and diesel cars, and to forcing landlords to improve energy efficiency in rented housing.

The Climate Change Committee advise the Government on emissions targets and report to Parliament on progress in reducing greenhouse gas emissions. They have repeatedly warned that there is a substantial gap between the Government policy and the legal obligations under the Paris Climate Change Agreement.

Whether this judgment of the Grand Chamber will leave the UK government more open to challenge over its failures to meet international obligations under climate change agreements remains to be seen. However, the Climate Change Committee are clear that the Government’s current National Adaption Programme (NAP3) to tackle climate change and its impacts falls far short of that is required.

If a person or organisation is able to show that the Government is failing to provide effective protection from the serious effects of climate change on the lives, health, wellbeing and quality of live, they may well be in breach of Article 8.

If you or someone you know wants legal advice on issues around climate change and protest, call 0330 822 3451 to speak to one our criminal defence experts or request a callback.

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