Landmark legal challenge over N Ireland air quality failure

issued on behalf of Friends of the Earth NI, The PILS Project and NICCY

Lawyers, environmental justice groups and NI’s children’s rights watchdog are in court today, attempting to stop a dangerous 17-year long air quality failing.

Hundreds of thousands of diesel cars in Northern Ireland have never received a legally compliant exhaust emissions test at government-controlled MOT vehicle testing centres. The test was introduced in 2006 but was stopped after four months and it has never been restarted.

The Department for Infrastructure are still not carrying out the legally required exhaust emissions test on any diesel cars in Northern Ireland, over five years after the failure was publicly exposed in a high-profile BBC Spotlight investigation.

Now, Friends of the Earth NI, supported by The Public Interest Litigation Support (PILS) Project, are taking legal proceedings to compel the Department to recommence testing as soon as possible.

During the one-day High Court hearing, their legal team will argue that, in failing to fully test the emissions of diesel cars in Northern Ireland, the Department for Infrastructure has not only breached its duties under vehicle testing law but also its duties to protect public health and the health of Northern Ireland’s biodiversity and wildlife habitats. 

Speaking in advance of the judicial review, PILS Director Maria McCloskey said that: “17 straight years of a failure to comply with the law is completely unacceptable. Our hope for this challenge is that the Department will not be permitted to let this serious air quality failing go on any longer. This landmark public interest case is about defending everyone’s right to breathe clean air and eradicating a triple threat to public health, natural habitats and biodiversity.”

The case is a local example of the flourishing global movement to drive environmental action through legal routes. All around the world, communities are increasingly taking to the courts – as well as to the streets – to ensure governments live up to their environmental commitments.

Welcoming the opportunity to have the MOT diesel emissions testing case heard in court, James Orr, Friends of the Earth NI Director, also commented: “The consistent failure to test diesel emissions on cars by government controlled MOT centres, is a reckless act by a Department who are there to protect the air that we breathe. Human health and the health of our environment has been put at risk for the last 17 years by the Department for Infrastructure’s dereliction of duty. We are taking the government to court because we all have a right to breathe clean air.”

Motivated by its concerns over the harmful effects of these untested emissions, the NI Commissioner for Children and Young People is also intervening in the case. 

Northern Ireland Commissioner for Children and Young People, Chris Quinn, said: “It is deplorable that the Department for Infrastructure have not been carrying out their legal obligations for 17 years. NICCY intervened in this case to hold the government to account and to highlight the relevant human right concerns and the serious adverse impact that poor air quality has on children’s health. This milestone case is so important, as these exhaust emissions affect us all, but it particularly affects children and young people, as is borne out by the scientific evidence referred to in this case. It is vitally important that the Department acts urgently to ensure that emissions are adequately tested. It is a basic right for children and young people to be able to breathe clean air.”

The Clean Air NI judicial review is creating legal history in Northern Ireland as one of the first cases to rely on the Climate Change Act 2022 in court.

In another significant development, PILS Project Director Maria McCloskey has assumed the role of instructing solicitor in the case, taking over from Friends of the Earth NI: “This is exactly the sort of scenario that PILS was set up to support. The legal team involved in this case has truly become a community and it’s a huge honour for me to pick up the baton from Friends of the Earth’s brilliant in-house solicitor, Laura Neal.”

#CleanAirNI

ENDS

Notes for editors:

1. There will be a photocall with representatives from Friends of the Earth NI, The PILS Project and NICCY outside the Royal Courts of Justice, Belfast BT1 3JF on Thursday 21 September 2023 at 09:30.
2. Friends of the Earth is an environmental justice charity with a regional office in Belfast that undertakes campaigning and other work including legal interventions in furtherance of its objectives to ensure that each generation enjoys an environment that is getting better, a safer climate, abundant nature, healthy air water and food. It encourages people to come together to transform our environment into one which is flourishing, sustainable and socially just: www.friendsoftheearth.uk/northern-ireland 
3. The Public Interest Litigation Support (PILS) Project is Northern Ireland’s first and only legal project dedicated to helping local NGOs and legal professionals to build public interest litigation. These are life-changing legal cases that create positive impact, not just for one person, but for communities across Northern Ireland: www.pilsni.org
4. NICCY was established through the Commissioner for Children and Young People (Northern Ireland) Order 2003 to ‘safeguard and promote the rights and best interests of children and young people’. The age remit includes those up to the age of 18 and those up to 21 years if they have a disability, or have experience of being in the care of the State. The Commissioner has an advice service for children and young people and their families if they feel they are not being treated fairly, or have a complaint about the services they receive, or are meant to receive: www.niccy.org
5. FOE NI successfully applied to PILS for legal assistance and financial support to initiate this air pollution challenge. More information on PILS’ free services is available here: https://pilsni.org/services-provided/ 
6. Judicial review is a particular type of court action where an individual/group with legal standing may challenge the lawfulness of a decision or action (including failure to act) of a public body. Judicial review is a remedy of ‘last resort’.
7. Friends of the Earth NI lodged their application for leave to judicially review the Department for Infrastructure’s ongoing failure to adequately test diesel car emissions on 3 February 2023 and leave was granted on all grounds by the court a few days later on 8 February 2023.
8. In May 2023, NICCY applied for permission (‘leave’) to intervene as a third party in the Clean Air NI case. A third-party intervention means involving an individual or group, who is a “stranger” to a particular set of legal proceedings, in the case. If the court grants the individual or a group permission to become a third party to the proceedings, the individual or group is able to provide written or oral representation before the court. NICCY will highlight its human rights concerns and the adverse health impacts that air pollution has on children and young people in Northern Ireland.
9. The full court hearing of the case is scheduled to take place on 21 September 2023.
10. Friends of the Earth NI is represented by Ms Monye Anyadike-Danes KC and Mr Aidan McGowan BL.