A court just made ‘legal history’ by ruling for a third time the government is acting unlawfully

The UK government’s actions have been declared unlawful by a judge, for the third time on the same issue. And what’s more, the judge has ensured that the government can be brought back to court as many times as needed until it starts acting within the law; making “legal history”, according to the group that brought the case.

Air pollution is directly linked to around 40,000 early deaths every year. Despite this, the government has repeatedly been allowing air pollution levels to breach legal EU limits. But this has not gone unnoticed, as legal campaign group ClientEarth has been using the law in an attempt to force the government to act. And so far, it – not the government – is winning.

Making ‘legal history’

In its latest case, ClientEarth accused the government of acting illegally. This was because the government’s plans for 45 local authorities which have been breaching air pollution limits were not sufficient. And the judge in the case, Mr Justice Garnham, agreed. He said [paywall] that the government’s plans were “not sufficient” and “seriously flawed”.

Garnham ordered that Environment Secretary Michael Gove must:

ensure that, in each of the 45 areas, steps are taken to achieve compliance as soon as possible, by the quickest route possible and by a means that makes that outcome likely.

He said the government’s current plans, published in July 2017, did not ‘require’ local authorities to act – just “urged and encouraged” them.

But Garnham then went further. He said that, in the future, ClientEarth could bring the government back to court whenever it felt that it had acted unlawfully again. This essentially means that the court will now have oversight of every government policy decision regarding air pollution.

The opposing sides say…

ClientEarth lawyer Anna Heslop said:

The judge has effectively allowed us to bring this matter straight back to court without delay if the government continues to fall short of its duties… it means we will be able to monitor the government’s actions even more effectively and hold them to account.

A spokesperson for the Department for Environment, Food and Rural Affairs (DEFRA) told The Guardian:

We had previously considered that it was sufficient to take a pragmatic, less formal approach to such areas. However, in view of the court’s judgement, we are happy to take a more formal line with them. We have already delivered significant improvements in air quality since 2010 and we will continue to implement our £3.5bn air quality plan.

International condemnation

This is now the third time ClientEarth has won an air pollution case against the government; the first being in 2015 and the second in 2016. But the challenge that the group, and society, has is that judges can rule that the government has acted unlawfully; but they are failing to compel it to act. Also, it’s not just the UK courts. The EU, the UN and the World Health Organisation (WHO) have all criticised the UK government’s track record on air pollution. And so far, the government has done little to address their concerns, either.

In September 2017, the UN’s special rapporteur on human rights related to toxic waste said the government was ‘flouting its duty’ to protect the public’s health and lives against air pollution. And in October 2017, the WHO said that 44 out of 51 UK cities listed on an air quality database were breaching safe levels of air pollution.

The government’s shrugging of its shoulders

In previous ClientEarth cases, the government responded by merely moving its own goalposts slightly. And then, it went back to court again – all at the taxpayer’s expense. But it has form when it comes to ignoring condemnation from international bodies – the case of the UN saying it had committed “grave” and “systematic” violations of disabled people’s rights being a prime example.

It’s difficult to see what will compel the government to take the UK’s air pollution crisis seriously. Repeated legal action, international condemnation and 40,000 deaths a year don’t seem to be enough.

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Featured image via Dan Perry/Flickr and 10 Downing Street/YouTube