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Government set to face raft of human rights challenges over air pollution

One of the UK’s leading human rights lawyers has said she is investigating human rights challenges against the British Government over its failure to tackle the devastating effects of air pollution on the nation’s health.

Jocelyn Cockburn of Hodge Jones & Allen says: “Air pollution 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. The fact that the Government has got away with failing to protect the public for so long is a scandal.”

Ms Cockburn, who has a history of bringing landmark human rights cases against the Government having successfully fought to give British Troops protection under the Human Rights Act, says she has been examining the possibility of bringing a “right to life” challenge arising from the health impacts of air pollution.

In April a Supreme Court ruling found the UK in breach of EU standards on toxic nitrogen dioxide levels and tasked the Government with drawing up an air quality plan this year which properly addresses the ongoing breaches of EU limits on air pollutants and provides a comprehensive plan to clean up our air.

Ms Cockburn says that the consultation for this plan, which was launched on 12 September, makes dismal reading: “The Government response to tackling the nation’s air quality has been woefully inadequate. Far from taking robust steps to protect British lives, central Government is attempting to offload the task of reducing pollution levels to overstretched local authorities.

“Meanwhile, Defra has been lobbying against EU measures requiring member states to carry out inspections on “real world” vehicle emissions. These inspections determine whether vehicles are in fact complying with emissions standards in real world driving conditions as opposed to in the laboratory.

“The Government’s professed commitment to tackling air pollution is not matched by its actions. Recent revelations suggest that the Department for Transport was informed of allegations of emissions test rigging before the current Volkswagen scandal emerged, but did nothing. Volkswagen’s behavior is shocking, but much of the reporting has been about the defrauding of customers and there has been little focus on what I consider to be the main issue which is the risk to human health.”

Article 2 of the European Convention on Human Rights imposes an obligation on the state to protect the right to life. According to Public Health England estimates, 29,000 early deaths a year in the UK are thought to be caused by inhaling tiny particles of unburnt soot known as particulate matter. The UK has recently estimated that a further 23,500 deaths are caused by the other key dangerous pollutant, nitrogen dioxide, bringing the total annual death toll to 52,500.

Ms Cockburn explains: “In recent months I have thought increasingly about how vulnerable people and people with disabilities are disproportionately impacted by the toxic air we breathe. 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. 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 tend to live in the most polluted areas.
However, we all have lungs and therefore everyone is potentially affected. I believe that the Government owes us a legal duty to protect us from the known risks associated with pollution and that they have failed to do this.

“I therefore intend to focus on how the law can be used to require the government to protect people from the insidious effects of air pollution. For too long evidence of the dire impact of diesel emissions and other pollutants has been sidelined. I am therefore looking at bringing cases on behalf of affected clients who want to challenge the failure to address the long-known risk of poor health and death resulting from living and working in areas of toxic air pollution.”

Ms Cockburn herself suffers directly from the effects of air pollution; she has asthma, as well as scoliosis which brings with it restricted lung capacity asthma. She says: “I have noticed that air quality has a direct impact on how I’m feeling, and whether I am capable of carrying out day to day tasks such as commuting or going for a walk. I have also noticed that at times of increased air pollution I am more vulnerable to chest infections.

“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 our air quality. We demand clean water – why shouldn’t we demand clean air too? People already living with lung conditions should not be made ill just by the air that they breathe.”

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Kerry Jack, Black Letter Communications
Louise Eckersley, Black Letter Communications