31 January 2017
In my capacity as the United Nations Special Rapporteur on human rights and hazardous substances and wastes, I undertook an official country visit to the United Kingdom, at the invitation of the Government, from 17 to 31 January 2017. The purpose of the mission was to monitor and assess steps taken by the Government of the UK to protect the human rights implicated by the management of hazardous substances and wastes.
I wish to emphasize at the outset that these are only preliminary observations. A full report of the mission, which will contain a more comprehensive analysis of the situation and recommendations from a human rights perspective, will be prepared and submitted to the Human Rights Council in September of 2017.
I would like to begin by thanking the Government of the UK for the invitation to visit. During the course of the last two weeks, I have met with various authorities of the UK, as well as of the governments of England, Northern Ireland, Scotland, Wales; Human Rights Commissions; businesses; civil society organizations; members of parliament; various Commissioners; and communities, from those affected by pollution and contamination, to those concerned about the toxic threats of fracking and other industrial activities.
Air pollution & the rights of children and others in vulnerable situations
Human rights are grounded in equality and non-discrimination, and it is the duty of States to respect, protect and fulfill the rights of everyone, giving particular attention to those especially at risk and in vulnerable situations.
Air pollution plagues the UK. Children, women of reproductive age, the elderly and those of poor health are the most threatened by toxic air, with poorer communities often exposed at higher levels. Some 30-40,000 premature deaths per year are estimated for the UK, with over 9,000 in London alone. During my visit, London’s air pollution hit record highs. UK cities regularly exceed EU standards for air quality. Pediatricians refer to the present state of the impacts of pollution and contamination on children’s health as a “silent pandemic.”
The U.K. has a duty to prevent and control exposure to pollution and toxic chemicals so as to protect against their adverse health effects. Article 24 of the UN Convention of the Rights of the Child (CRC) recognizes the right of children to the “highest attainable standard of health.” It explicitly requires States to take into account the risks of pollution in the realization of a child’s right to health. Of course, the UK also has obligations for other at-risk populations.
Toxic air is not a new phenomenon for the UK. While levels of certain pollutants have fallen since the 1970s, grave impacts on the most vulnerable persist, and progress on some of the worst types of air pollutants has stalled in recent years. Stronger air quality standards adopted by the EU in 2008 (entering into force in 2010) helped to illuminate the threat of air pollution. The UK Supreme Court in a judgment of 2013 declared the UK to be in breach of EU air quality standards and in a ruling of 29 April 2015, following answers received from the European Court of Justice, ordered the Government to submit an air quality plan to the European Commission, leading to the development of a Clean Air Plan. During court proceedings, the Government acknowledged it might not meet air quality standards of the EU in London and other cities before 2025. The high court recently judged the UK Government’s Plan as insufficient to meet its obligation to take measures to improve air pollution “as soon as possible,” ordering the Government to develop a new plan by 31 July 2017.
Although the problem cannot be resolved overnight, there is an urgent need for political will by the UK government to make timely, measurable and meaningful interventions, create long-term incentives, and ensure that the necessary infrastructure is in place. I encourage the UK government to fulfill its human rights obligations on air pollution, protecting the rights of children, women of reproductive age, the elderly and those of poor health who are especially vulnerable to toxic chemicals in developing a new plan to tackle its air pollution crisis.
Indeed, EU regulations have strengthened human rights protections from various sources of pollution and contamination in the UK. The UK has an obligation to progress, not to slide backwards from current human rights protections under the principle of non-regression, including protections from toxic threats to human rights.
The UK Government explained that it will maintain current EU standards on human rights and environmental protections through the Great Repeal Act. Yet, many of the interlocutors with whom I spoke said that many uncertainties remain around the technicalities. Questions exist about the UK’s ability to maintain EU standards in the short, medium and long term. In various political statements on objectives for Brexit, I found no indication of a political commitment to retaining current standards for health and environmental protection.
It should be noted that the UK has repeatedly not been among the more progressive EU Member States on debates over the development of stronger health and environmental protections, which are human rights protections. Brexit also coincides with debates on the potential repeal of the UK’s Human Rights Act, and withdrawal from the European Convention of Human Rights, although, with regard to latter, the Government recently stated that is has no plans to do so.
The government does not rule out deviations from EU standards of public health or environmental protection following Brexit. There is no clarity around maintaining the EU’s precautionary principle. Moreover, there is no clarity yet on plans to address the potential loss of access to EU institutions on which regulators currently rely to protect human rights.
A member of the UK Parliament’s environmental audit committee claimed that it would be impossible to transpose 30% of EU health and environmental legislation into UK law without changes. Also, I heard from regulated businesses that they see opportunities to “enhance” EU environmental legislation in the UK through Brexit. Meanwhile, authorities in Scotland, Wales and Northern Ireland expressed concerns about Brexit and their limited participation in the Westminster-led process.
Further compounding the potential for a weakening of standards and human rights protection is the UK’s pivot away from the EU towards closer cooperation with the United States. Rights that are often impacted by pollution and contamination are not recognized by the US while they are by the UK. Moreover, the US has a regulatory approach to health, environmental and other human rights protections that are in many aspects at odds with those of the EU. Politicians in the UK and US have pushed in recent years for deregulation of businesses, and mutual recognition of standards across the Atlantic, without due consideration of the role such regulation plays for the protection of human rights.
Thus, “Brexit” presents a possible threat. The timing of my visit did not allow for examination of a forthcoming detailed plan which I hope will ensure that Brexit is not an opening for deregulation and regression from human rights standards.
The governance structure of the UK for toxic chemicals is complicated, often falling to devolved governments, a myriad of different central or sub-central agencies, or assigned to local authorities. On the one hand, devolution has created the opportunity for more democratic decision making about public health and environmental threats. A good example is the Scottish moratorium on fracking, which is allowing for informed decision-making and meaningful public participation.
On the other hand, the increased responsibility dealt to local authorities in combination with decreasing financial, technical and human resources due to austerity is problematic. In addition to the lack of resources, there is lack of structured cooperation between relevant authorities and limited channels of accountability and oversight. And the demands of Brexit are placing further strains on already stretched resources at DEFRA and other UK departments and agencies.
For example, a community in Merthyr Tydfil has objected to the creation and ongoing operation of the Fos y Fran opencast coalmine. Winds are alleged to blow to the community from the mine 40-60% of the time. Instead of a safe buffer zone between the mine and homes, due to legislative loopholes (the large open-cast mine is not subject to intended laws on such mines, but rather laws for “reclamation” of old mines) some residents live only a few dozen meters from the operation’s fenceline. A prevalence of childhood asthma and cancer clusters was alleged among the community. The Welsh government appears to attribute rates of disease and disability in the community to unhealthy habits, and shifts responsibility for investigation to the company and other levels of government. The community tried to enforce their rights through the planning process, repeatedly through the UK courts, through the European Parliament, and the Aarhus Convention, to which the UK is party. Meanwhile, a massive expansion of the coal mine has been proposed.
The Prime Minister recently explained that the UK has been “a country that has always looked beyond Europe to the wider world.” Indeed, she championed the UK’s Modern Slavery Act in recent years. While the UK Government says it expects businesses to operate with the same standards of human rights protection outside the UK, the Government does not have adequate legislation to ensure this expectation is reality when it comes to the toxic impacts of UK businesses abroad.
There are several examples of failures by UK businesses to conduct adequate due diligence on the impacts of their activities and business relationships abroad when it comes to toxic chemicals, pollution and waste. There are many examples of businesses linked to practices and activities that would not be tolerated in the UK. Businesses domiciled in the UK are linked to the worst environmental disaster in Brazil’s history; the sale of untested consumer products that have killed children and young women in South Korea; and the import of ‘fracked’ shale gas from the United States. One highly hazardous pesticide, Paraquat, continues to be manufactured for export out of the UK, despite a prohibition on their use in the UK and approximately 40 other countries. Of grave concern are children allegedly using such highly toxic pesticides in agricultural practices, amounting to a worst form of child labor, implicating both the pesticide manufacturer and companies that sell products of such labor practices in the UK. It is unlikely to be the only such pesticide exported from the UK.
During the mission, I was reminded of Princess Diana’s efforts for a global ban on landmines over twenty years ago. Long after battles have ended, toxic remnants of war continue to inflict harm and suffering around the world. Like landmines, children are especially vulnerable to the invisible threats of toxic contamination. I was troubled to hear of alleged cases of toxic contamination from UK military activities resulting in diseases among communities. I was pleased to hear that the Ministry of Defense has agreed with Scottish Authorities on a plan to clean up contamination discovered in Dalgety Bay, Scotland, a former military site. I encourage the Ministry to investigate all allegations relating to contamination and provide access to remedy by communities and military service personnel, both at home and abroad, as needed.
Accountability, justice and remedy
Victims of human rights abuses due to UK business activities abroad have appropriately turned to UK courts to seek accountability, remedy and justice. Notable cases include those brought by 40,000 victims of oil pollution in Nigeria; and by 30,000 victims of illegal disposal of hazardous waste in Cote d’Ivoire that killed fifteen people and left the city of Abidjan facing unknown long-term health impacts.
I was briefed on the UK’s support for the UN Guiding Principles on Business and Human Rights, including the fact that the UK Government was the first member State to publish and then to revise a National Action Plan.
I am concerned that rather than ensuring adequate regulatory oversight and the threat of punitive measures, the UK Government depends far too much on the reputational risks to companies for accountability.
Regulators in the UK note an increasingly criminal dimension of pollution. Both the UK Environment Agency and Scottish Public Prosecutors have investigated and successfully convicted UK businesses of illegal waste activities, including international waste crimes. However, in the above case of the illegal dumping of waste in Cote d’Ivoire, by a multinational trading company domiciled in the UK, the Environment Agency did not pursue criminal liabilities.
For victims of toxic pollution, seeking remedy in the UK is very difficult. In addition to severe difficulties in accessing relevant information and the challenge of establishing legal causation, cuts in legal aid have made it near impossible for victims of pollution and contamination to seek remedy for civil suits. Furthermore, the unavailability of “protective costs” for many claimants is an insurmountable obstacle. In the case of the Fos y Fran coal mine, the Aarhus Convention’s Compliance Committee found that the UK was in breach of its obligations to ensure access to justice by in essence excluding the public from court procedures by prohibitively expensive cost requirements.
For workers who develop diseases from exposures to toxic chemicals at work, compensation, health care and other aspects of their right to an effective remedy can be unattainable. It is calculated that for non-asbestos related occupational diseases, less than 1% of sick workers receive compensation (90 of over 13,500 claims) in the UK.
Pesticides present considerable risks to agricultural workers. I was troubled to learn of the long-standing inability of farmers who used toxic organophosphates to access health care or other aspects of an effective remedy for what they believe are illnesses arising from compliance with a compulsory Government scheme to dip their sheep in toxic pesticides. Questions continue to surround the decision of the Government to require farmers to dip sheep in toxic pesticides despite proof the treatment was effective, and most importantly the inability of those who may be suffering from or died of adverse effects to access an effective remedy.
Right to information
In my many discussions with concerned communities, be it plans for unconventional gas extraction (Falkirk), disposal of sewage (Avonbridge), or plans to expand industry in heavily industrialized towns (Grangemouth), the severe difficulty in accessing information directly relevant to the health and safety of affected individuals was a recurring theme. Rather than leaving it to the responsibility of companies, the UK central and local Governments must comply with their obligations to ensure the right to information of individuals who may be directly affected by the impact of such industry. Too often, it seems that it is only at the insistence of well-organized and committed community groups that human rights concerns related to the health and an adequate standard of living come to light.
For years, policies have thrust the burden of pollution and contamination on future generations. This remains the case. For example, the burden of storing high-level nuclear waste for over 100,000 years falls to future generations. Finding sustainable and safe transportation and storage options for highly toxic waste from nuclear power is growing in urgency with a transition to low-carbon power sources, such as nuclear power. I was pleased to hear that a public consultation on long-term storage options is expected to begin shortly, yet have concerns that the communities selected will be those with the least power to defend their rights.
The UK must also effectively deal with its industrial legacy. Roughly 20,000 or so historic landfills have been identified, many of which reportedly present risks to nearby communities and require substantial resources for remediation. I was informed that hundreds of thousands contaminated sites may exist. The responsibility for identification and remediation falls to local governments in the UK, who are often under resourced, and remediation of contaminated sites is largely financed by development projects, including residential areas for low-income communities.
Today, we know far more about the threats of pollution to life, health, food, water, and adequate housing than we did as a society generations ago. It is imperative we use this knowledge to transition away from dirty practices to cleaner, safer, less-toxic alternatives.
I was pleased to hear of the recent creation of a Wales Commissioner for Future Generations. Without question, our actions today affect the enjoyment of human rights by future generations. I encourage other countries to enact such Commissioners, and ensure that due attention is given to pollution and other toxic threats to the health and well being of future generations.