Clean Air (Human Rights) Bill (HL Bill 118)

A

BILL

TO

Establish the right to breathe clean air; to require the Secretary of State to
achieve and maintain clean air in England and Wales; to involve Public Health
England in setting and reviewing pollutants and their limits; to enhance the
powers, duties and functions of the Environment Agency, the Committee on
Climate Change, local authorities (including port authorities), the Civil
Aviation Authority, Highways England, Historic England and Natural
England in relation to air pollution; to establish the Citizens’ Commission for
Clean Air with powers to institute or intervene in legal proceedings; to require
the Secretary of State and the relevant national authorities to apply
environmental principles in carrying out their duties under this Act and the
clean air enactments; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

1 Overview

(1) Everyone has the right to breathe clean air and the Human Rights Act 1998 is
to be read as though this were a Convention right.

(2) The Secretary of State must achieve clean air throughout England and Wales
5within 12 months of the coming into force of this Act and maintain clean air
throughout England and Wales thereafter.

(3) The Secretary of State must provide the necessary funding to the relevant
national authorities and to the Citizens’ Commission for Clean Air to fulfil
their duties under this Act.

(4) 10For the purposes of this Act—

  • “clean air” means air that does not contain banned pollutants or
    pollutants, concentrations or emissions above the limits or levels of
    exposure (which may be zero) which are set out in—

    (a)

    Schedule 1 (pollutants relating to local and atmospheric
    15pollution);

    (b)

    Schedule 2 (indoor air pollutants);

    Clean Air (Human Rights) BillPage 2

    (c)

    Schedule 3 (pollutants causing primarily environmental harm);
    and

    (d)

    Schedule 4 (pollutants causing climate change);

    to this Act;

  • 5“the limits for pollutants” in Schedules 1 to 4 are set for short, medium or
    long-term time frames and the units referred to in those Schedules
    are—

    Unit Definition
    mg/m3 Milligrams per cubic
    10metre
    µg/m3 Micrograms per cubic
    metre
    ng/m3 Nanograms per cubic
    metre
  • 15“pollutants” means those particles, gases or other substances that are
    emitted directly into the air or formed from secondary chemical
    reactions in the air, including smoke, grit, dust, fumes, aerosols, volatile
    organic compounds, carbon dioxide and other greenhouse gases;

  • “the relevant national authorities” are—

    (a)

    20the Environment Agency (EA);

    (b)

    the Committee on Climate Change (CCC);

    (c)

    local authorities in England and Wales;

    (d)

    the Civil Aviation Authority (CAA);

    (e)

    Highways England;

    (f)

    25Historic England; and

    (g)

    Natural England.

2 Reviewing and revising the pollutants and limits in Schedules 1 to 4

(1) The Environment Agency (EA) must on an annual basis review the pollutants
and the limits set out in Schedules 1 to 3.

(2) 30The EA, in carrying out a review under subsection (1), must—

(a) take into account the best available scientific knowledge and guidance
on ambient air pollutants from the World Health Organization (WHO);

(b) take advice from Public Health England and epidemiologists about the
effects of pollution on public health;

(c) 35take into account the best available scientific knowledge and guidance
on indoor air pollutants from the WHO and the International
Organization for Standardization (ISO);

(d) take into account the best available scientific knowledge and guidance
on atmospheric pollutants from the United Nations Economic
40Commission for Europe (UNECE);

(e) consult and seek advice from scientists on the effects of air pollution on
the environment;

(f) apply the precautionary principle; and

Clean Air (Human Rights) BillPage 3

(g) include a public consultation in accordance with the Aarhus
Convention.

(3) Following a review under subsection (1), the EA must advise the Secretary of
State as to whether additional pollutants should be added to Schedules 1, 2 and
53 or whether the pollutant limits in those Schedules should be lowered in order
to protect life, health or the environment.

(4) In advising the Secretary of State under subsection (3), the EA must have
regard to—

(a) pollutant emissions and concentrations;

(b) 10human exposures and health impacts and outcomes;

(c) the need to address pollution across England and Wales, and in the
worst locations in England and Wales;

(d) the needs of sensitive population groups including children, the elderly
and other individuals who are particularly susceptible to air pollution;

(e) 15exposure to pollutant concentrations when travelling by public
transport in ambient air or underground;

(f) biogeographical region-specific ozone flux models and critical levels
for individual plant species or groups.

(5) The Secretary of State must, in accordance with the advice received under
20subsection (3) and the precautionary principle, amend Schedules 1 to 3 by
regulations made by statutory instrument to include additional pollutants (and
their limit values which may be zero) and to lower any limits.

(6) The Secretary of State must also amend the pollutants and the limits set out in
Schedules 1 to 3 to reflect revised guidance from the WHO, ISO and UNECE.

(7) 25In case of conflict between the advice of the EA under subsection (3) and
guidance under subsection (6), any additional pollutants must be listed and the
lower limit values must be adopted.

(8) The Committee on Climate Change (CCC) must on an annual basis review the
pollutants and the limits listed in Schedule 4.

(9) 30The CCC, in carrying out a review under subsection (8), must—

(a) take into account the best available scientific knowledge and advice
from the Intergovernmental Panel on Climate Change (IPCC);

(b) consult and seek advice from scientists about the effects of air pollution
on the climate;

(c) 35apply the precautionary principle; and

(d) include a public consultation in accordance with the Aarhus
Convention.

(10) Following a review under subsection (8), the CCC must advise the Secretary of
State as to whether new pollutants should be added to Schedule 4 or whether
40the limits in Schedule 4 should be lowered in order to protect the environment
and safeguard future generations, including emission limits on international
aviation landing in or taking off from the United Kingdom.

(11) The Secretary of State must, in accordance with the advice received under
subsection (10) and the precautionary principle, amend the limits in Schedule
454 by regulations made by statutory instrument.

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(12) In advising the Secretary of State under subsections (3) and (10), the EA and the
CCC may advise setting the limits for pollutants and emissions under
Schedules 1 to 4 for a short, medium or long-term time frame (see section 17).

(13) Where Schedules 1 to 4 are amended and a new pollutant limit is added or a
5limit is reduced in accordance with, but after the commencement of, this Act,
the new or amended limit will take effect after a period of 12 months,
beginning with the date on which the relevant amending regulations come into
force.

(14) A statutory instrument containing regulations under this section is subject to
10annulment in pursuance of a resolution of either House of Parliament.

3 Secretary of State’s duty: assessing air pollutants

(1) The Secretary of State must ensure—

(a) the accurate and regular assessment of air pollution in England and
Wales; and

(b) 15the provision of detailed information about air pollution in England
and Wales to the public;

and may make regulations by statutory instrument to comply with this duty.

(2) Regulations about assessing air pollution in England and Wales under
subsection (1) must ensure—

(a) 20the consistent use of established air pollution zones and
agglomerations;

(b) the sampling, measurement and modelling of ambient air pollutants,
including the deposition of pollutants, listed in Schedule 1;

(c) the sampling, measurement and reporting of indoor air pollutants
25listed in Schedule 2;

(d) the sampling, measurement and modelling of ambient pollutants
causing primarily environmental harm listed in Schedule 3; and

(e) the sampling, measurement, modelling and reporting of other air
pollutants causing climate change listed in Schedule 4.

(3) 30The regulations must—

(a) require assessment of ambient air pollution in England and Wales in
accordance with the Air Quality Standards Regulations 2010 (as
amended) (S.I. 2010/1001S.I. 2010/1001);

(b) require owners of buildings which—

(i) 35are used as places of work and to which health and safety
provisions apply; or

(ii) are regularly accessed by members of the public, including
children,

to assess and report concentrations of indoor air pollutants measured
40in accordance with the most up to date ISO standards;

(c) require developers to assess and report concentrations of indoor air
pollutants in accordance with the most up to date ISO standards in
newly refurbished or constructed residential developments during the
first 12 months of occupation;

(d) 45require the assessment of the deposition of air pollutants in accordance
with the criteria in the Gothenburg Protocol;

(e) require UK based organisations of all sizes to report their greenhouse
gas pollutants;

Clean Air (Human Rights) BillPage 5

(f) require the assessment of greenhouse gas pollutants in accordance with
the requirements of the Climate Change Act 2008; and

(g) amend assessment methods in accordance with subsection (9) below.

(4) The regulations must ensure that daily information regarding ambient
5concentrations of the pollutants listed in Schedule 1 is provided to members of
the public through a range of formats.

(5) The information under subsection (4) must include—

(a) information on observed exceedances of the limits listed in Schedule 1
presented as averages according to the relevant averaging period set
10out in Schedule 1;

(b) forecasts of ambient concentrations of the pollutants listed in Schedule
1 for that day and each of the following four days;

(c) information about the location and types of populations affected by
exceedances under paragraph (e) including possible health effects and
15recommended behaviours;

(d) information on possible sources of pollutants and recommendations
for preventative actions that could be taken by those in charge of the
sources to reduce pollution or exposure to it; and

(e) where any information threshold or alert threshold specified under
20Schedule 1 is forecast to be exceeded or actually exceeded, necessary
steps must be taken to inform members of the public by means of radio,
television, newspapers and the internet.

(6) The Secretary of State must publish a report within six months of the passing
of this Act, and within the period of six months beginning with the end of each
25subsequent calendar year, summarising the effects of each of the pollutants
exceeding the limits over the relevant time frame, according to the appropriate
averaging period, listed in Schedules 1 to 4.

(7) The Citizens’ Commission for Clean Air (the “CCCA”) must review annually
the Secretary of State’s compliance with—

(a) 30the limits in Schedules 1 to 4, and

(b) subsections (1) to (6),

during the previous calendar year.

(8) Following the review under subsection (7), the CCCA must advise the
Secretary of State as to whether any methods of assessment, publication or
35reporting should be discontinued, amended or improved or whether methods
of assessment, publication or reporting should be added with effect from the
start of the subsequent calendar year.

(9) The Secretary of State must, in accordance with advice received under
subsection (8) and the precautionary principle, amend assessment, publication
40or reporting methods through regulations made by statutory instrument.

(10) In making regulations under subsection (9), the Secretary of State must have
regard to the desirability of ensuring continuity and the comparability of
reporting.

(11) A statutory instrument containing regulations under this section is subject to
45annulment in pursuance of a resolution of either House of Parliament.

Clean Air (Human Rights) BillPage 6

4 Secretary of State’s duty: additional provisions

(1) In exercising their duty under section 1 of this Act, the Secretary of State must
comply with the United Nations Convention on Long-Range Transboundary
Air Pollution and its protocols as listed in Schedule 5.

(2) 5In carrying out their duty under section 1, the Secretary of State must work
with the relevant national authorities and exercise his or her powers under the
clean air enactments listed in Schedule 6 and other Acts in accordance with this
duty.

(3) Notwithstanding any other provision of this Act, the Secretary of State may,
10upon receipt of evidence that a pollution source or combination of sources
(including moving sources) presents an imminent and substantial threat to
current or future public health or the environment, take proportionate and
necessary action to restrain any person or persons responsible for causing or
contributing to the alleged pollution, to stop the emission of air pollutants or
15to take such other action as may be necessary to preserve the right to breathe
clean air.

(4) Within the period of 14 days beginning with the day on which they exercised
the power under subsection (3), the Secretary of State must lay a statement
before both Houses of Parliament setting out—

(a) 20what action they took; and

(b) why, in the Secretary of State’s opinion, such action was necessary and
proportionate.

5 Environment Agency (EA)

(1) The Environment Act 1995 is amended as follows.

(2) 25In section 4(1) (principal aim and objectives of the Agency)—

(a) after “other enactment” insert “such as the clean air enactments set out
in Schedule 6 to the Clean Air (Human Rights) Act 2018 or any other
enactment governing the EA’s functions in relation to the regulation of
the ambient air quality or controlling pollution and emissions at
30source”; and

(b) after “whole”, insert “including to achieve and maintain clean air
throughout England and Wales”.

6 Committee on Climate Change

(1) The Climate Change Act 2008 is amended as follows.

(2) 35After section 32 (functions of the Committee) insert—

32A Duty to advise on emission limits

It is the duty of the Committee to advise the Secretary of State on
emission limits under section 2 (reviewing and revising pollutants and
limits in Schedules 1 to 4) of, and Schedule 4 to, the Clean Air (Human
40Rights) Act 2018.”

(3) In section 38 (duty to provide advice or other assistance on request) after
subsection (1)(d), insert—

(e) the authority’s duty under the Clean Air (Human Rights) Act
2018.”

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7 Local authorities

(1) Local authorities in England and Wales have a duty to achieve clean air
throughout their area within 12 months of the coming into force of this Act and
maintain clean air throughout their area thereafter.

(2) 5Local authorities in England and Wales must exercise their powers and
functions, including under section 2 of the Local Government Act 2000
(promotion of wellbeing) and the clean air enactments, to improve the
environmental wellbeing of their local area and reduce exposure for members
of the public to the pollutants listed in Schedule 1 in accordance with the duty
10set out in subsection (1).

(3) The Secretary of State must provide money to local authorities from central
funds sufficient for them to carry out their duties under this Act.

(4) In this section, the “clean air enactments” are those enactments listed in
Schedule 6 and any other enactment governing a local authority’s functions in
15relation to—

(a) regulating the ambient air quality or controlling pollution and
emissions at source;

(b) land use planning;

(c) traffic planning, including actions as a Highways Authority;

(d) 20building regulation; and

(e) statutory nuisance.

(5) In this section “local authority” means, in relation to England and Wales—

(a) a county council;

(b) a district council;

(c) 25a London borough council;

(d) the Mayor of London;

(e) the Common Council of the City of London in its capacity as a local
authority;

(f) the Council of the Isles of Scilly;

(g) 30a combined authority; and

(h) port authorities.

(6) In this section “port authority” means, in relation to England and Wales, a
statutory harbour body established for the purpose of administering,
preserving and improving a port, including an airport, that may include docks,
35landing places or other works or land.

8 Civil Aviation Authority (CAA)

(1) The CAA must in exercising its functions—

(a) contribute to the maintenance of clean air in England and Wales; and

(b) apply the provisions of the UN Convention on Transboundary
40Pollution and its protocols as listed in Schedule 5.

(2) The Civil Aviation Act 1982 is amended as follows.

(3) In section 4 (general objectives), after subsection (1)(b) insert—

(c) to contribute to the maintenance of clean air in England and
Wales and respect for the right to breathe clean air under section
451 of the Clean Air (Human Rights) Act 2018.”

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9 Highways England

(1) The Infrastructure Act 2015 is amended as follows.

(2) In section 5 (general duties), after subsection (2)(a) insert—

(aa) to contribute to the maintenance of clean air under the Clean Air
5(Human Rights) Act 2018;

(ab) to follow instructions given to it by the Secretary of State to
contribute to the achievement of clean air.”

10 Historic England

(1) The National Heritage Act 1983 is amended as follows.

(2) 10In section 33 (the Commission’s general functions), after subsection (2)(f)
insert—

(g) shall contribute towards achieving and maintaining clean air, as
prescribed by the Clean Air (Human Rights) Act 2018 and the
clean air enactments as listed in Schedule 6 to that Act.”

11 15Natural England

(1) The Natural Environment and Rural Communities Act 2006 is amended as
follows.

(2) In section 2 (general purpose), after subsection (2)(e) insert—

(f) contribute towards achieving and maintaining clean air, as
20prescribed by the Clean Air (Human Rights) Act 2018 and the
clean air enactments as listed in Schedule 6 to that Act.”

12 The establishment of the Citizens’ Commission for Clean Air

(1) There will be a body corporate known as the Citizens’ Commission for Clean
Air (the “CCCA” or the “Clean Air Commission”).

(2) 25The CCCA must, by exercising the powers conferred by this Act, monitor and
enforce the right to breathe clean air and the duties to achieve and maintain
clean air in England and Wales.

(3) The constitution of the CCCA is set out in Schedule 7.

13 Judicial review and other legal proceedings

(1) 30The CCCA may institute or intervene in legal proceedings, whether for judicial
review or otherwise, if it appears to the CCCA that the proceedings are
relevant to the duty to achieve and maintain clean air and compliance with
relevant duties, powers and functions under the clean air enactments.

(2) The CCCA may assist an individual who is or may become party to legal
35proceedings if—

(a) the proceedings relate to, or may relate to, the right to breathe clean air
or the duty to achieve and maintain clean air;

(b) the individual is a member of the public who has the right of access to
justice under the Aarhus Convention; or

(c) 40they have reason to believe that an individual was a victim of a breach
of the right to breathe clean air.

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(3) The CCCA may assist individuals with actions for private nuisance.

14 Duty to maintain clear air: assessment

(1) The CCCA may assess the extent to which the Secretary of State, the relevant
national authorities and others have complied with their duties under this Act
5and the clean air enactments.

(2) Where the CCCA has reason to believe that any persons or relevant national
authorities have failed to comply with their duty, the CCCA may issue a notice
requiring them—

(a) to comply with their duty;

(b) 10to take specific steps in order to achieve compliance; and

(c) to provide to the CCCA written information of the steps taken, or
proposed to be taken, for the purpose of complying with their duty.

(3) A notice issued by the CCCA under subsection (2) must specify—

(a) the period of time which the information must cover; and

(b) 15the manner in which the information is to be provided.

(4) A person or public authority which receives a notice under this section must
comply with it within the period of 28 days beginning with the day on which
they received the notice.

(5) If the CCCA has reason to believe that a person or public authority which has
20received a notice under this section has failed to comply with a requirement of
the notice, the CCCA may apply to the Court for an order requiring the person
to comply.

15 Duty to maintain clean air: reporting

(1) The CCCA must—

(a) 25report annually to the Secretary of State on the Secretary of State’s
compliance with the provisions of this Act;

(b) lay this report before both Houses of Parliament; and

(c) send a copy of this report to the European Environment Agency.

(2) The report must be published by the CCCA.

16 30Environmental principles

In exercising their functions and carrying out their duties under this Act and
the clean air enactments, the Secretary of State and the relevant national
authorities must, in addition to safeguarding public health and the right to
breathe clean air, apply the following environmental principles—

(a) 35prevention, which means that environmental regulation must
anticipate, prevent and attack the causes of environmental harm;

(b) precaution, which means that where there are threats of serious or
irreversible damage to the environment, including human health, lack
of full scientific certainty must not be used as a reason for postponing
40cost-effective measures to prevent harm;

(c) polluter pays, which means that the costs of pollution or of clean-up
should be borne by the person responsible for causing the pollution;

(d) use of the best available scientific knowledge;