The courts must be involved: the quality of air our children breathe is too important to be decided in secret by ministers and the motor trade
When I was eight years old, I used to hold my breath when I walked to school. My route was along a busy road, and I had been told that lead in petrol hurt children’s brains. I stopped worrying as the years went by and there was a successful campaign to ban it. But now I sometimes find myself coughing as I wait on my bike behind a London bus and its fumes catch in my throat.
The science is clear: nitrogen dioxide from road traffic is seriously bad for our health – particularly for children and elderly people, because it can inflame our lungs and lower our resistance to respiratory infections such as bronchitis. So much so that 23,500 people in the UK are expected to die prematurely every year because of this air pollution. Imagine if knife crime or terrorism were killing people in these numbers – it would be described as a national crisis.
In the old days we could at least see the smog. But this is an invisible killer, hidden from sight and sheltered from political controversy.
Great swaths of the UK have nitrogen dioxide levels that are considered unsafe for human health. One of the main culprits is emissions from diesel vehicles. As we now know from the Volkswagen scandal, the emissions from diesel vehicles are often much higher than predicted in lab tests.
Public disquiet about all this is, at last, beginning to stir. There is concern about the impact a third runway at Heathrow would have on already shockingly bad air pollution levels in the capital. The House of Commons environment committee recently said Heathrow should not be allowed to expand unless the government can demonstrate that air quality is within legal limits.
What has not been talked about much is the role of the courts in forcing the government to take action. As a barrister specialising in environmental law, I regularly see the tension between the courts and governments of different colours over environmental issues. In 2007 I watched with interest as the high court told the then Labour government that its public consultation on nuclear power was seriously flawed. Now inaction over air pollution means it is the turn of the current Conservative government to face sanction.
Last year the supreme court reached its judgment in a long-running legal challenge by the campaign group ClientEarth over UK breaches of European air pollution law. Britain is not alone in breaching EU law: a number of other member states are in a similar position.
Here, the supreme court has ordered the government to produce a plan to reduce nitrogen dioxide levels to safe levels in as short a timescale as possible. It gave the government six months to do so, and allowed ClientEarth to return to court in the event it is not satisfied with the response. Forcing the government to act in this way was an unusual move because courts usually accept Whitehall’s word that it will take steps to meet its legal obligations. In doing so, the court said it had been influenced by the seriousness of the legal breach and the way air pollution had continued to worsen over the last four years, during which time the litigation has been running.
The courts recognise that reducing air pollution will not be easy. In the ClientEarth case, the high court judge referred to the “heavy burden of expenditure” on taxpayers and individuals “which would require difficult political choices to be made”.
The government published its revised air pollution plans in the runup to Christmas. Given the legal backdrop, it may not be entirely coincidental that shortly before the plans were published the decision on a third runway at Heathrow was delayed to enable a further look at air pollution and other environmental concerns.
Judicial pressure appears to be having a direct effect on the government. At the court hearing in April 2015 the government told the supreme court that parts of London, the West Midlands and West Yorkshire would still be at illegal limits in 2030. Under the plan produced in December, the timescales for compliance have shortened. The West Midlands and Yorkshire are expected to be in compliance with legal levels in 2020, London in 2025.
That is not good enough for ClientEarth, which accuses the government of still putting short-term political priorities ahead of public health and people’s lives. The revised plan soft-pedals on pollution by private motorists while the government appears intent on watering down EU legal limits for vehicle emissions.
The stage is set for a fascinating tussle between law and politics. The British court will have to roll up its sleeves and decide whether this government is doing what it can to make our air as safe as possible. No matter how tough the political choices, EU law has consistently made clear that financial and political difficulties are no defence for countries that fail to comply with their legal obligations. The European court has said it is up to national courts to call their governments to account for air pollution failures.
I hope the courts closely scrutinise the government’s plan. Ten more years of dangerous air pollution in the capital puts a whole generation of children at risk. Judicial review can assist in identifying the political choices made on our behalf in the plan, to better inform public debate about the difficult decisions ahead.
Securing the proper boundary between the role of unelected judges in determining legality, and elected government in determining policy and priorities, is never easy. The supreme court will be fully aware of the sensitivities involved, but equally the court is clearly determined not to allow the government to duck its legal duties to citizens. The quality of the air our children breathe is too important to be decided behind closed doors by the government and vehicle manufacturers.