Twitter LinkedIn

Inadequate Access to Justice - a chill wind that blows nobody any good

As Britain approaches its departure from the EU, Carol Day asks what will replace the EU's crucial legal institutions, which enforce environmental standards and provide routes for challenging Westminster, especially in a context of reduced support for Judicial Reviews and increasing court costs.

February 2018

Today I will be making a Statement on behalf of Environment Links UK to the 11th Meeting of the UNECE Task Force on Access to Justice. The Task Force meets annually to progress the work programme mandated by the Meeting of the Parties, and pretty much every year my report of the UK’s performance on access to justice and, specifically, progress on the 2012 findings of the Aarhus Convention Compliance Committee, is that the UK moves further away - rather than towards - compliance.

This year will be even more poignant as we raise the spectre of Brexit. It occurs to me that, as we await an imminent consultation paper on governance from the Secretary of State, the Rt. Hon Michael Gove MP, the UK’s performance on such issues remains acutely wanting. We are about to lose one of the most valuable mechanisms individuals and NGOs have for enforcing EU environmental legislation – the EU complaints mechanism – which provides citizens with a free and accessible mechanism to pursue infringements of EU law. We also stand to lose the Court of Justice of the European Court, a higher authority that typically conducts a more stringent examination of the substantive issues than our domestic courts. The Secretary of State has accepted that Judicial Review is not an adequate replacement for the loss of these mechanisms. This is largely about the limitations of JR as a predominantly procedural mechanism (and note that in this respect, a number of NGOs have submitted a Communication to the Aarhus Compliance Committee on the intensity of JR – but more on that in due course) but experience also suggests that Defra can exert little influence over their colleagues in the Ministry of Justice, whose policies and decisions are determinative of compliance. If the Secretary of State is to provide us with a “world leading environmental watchdog” this would require a body with the teeth and remit of the European Court and the accessibility of the EU complaints mechanism.

In recent years, the MoJ has progressed a systematic and debilitating attack on Judicial Review. Most of these measures (some progressed through the Criminal Justice and Courts Act 2015) have applied across the board, and environmental cases have not always been immune. A successful Judicial Review on the part of three NGOs (the RSPB, Friends of the Earth and ClientEarth) managed to ameliorate the worst of the changes to the costs regime for environmental cases introduced by the Ministry of Justice in 2017, but in the last three years in England and Wales we have seen increased court fees, reduced time limits within which to bring cases, the removal of oral renewal hearings in cases deemed “totally without merit”, further reductions in legal aid and exposing JR interveners to potential costs orders. The situation is similarly challenging in Scotland, with the possibility that the cap on Protected Expenses Orders will be increased, further reductions in legal aid and a doubling of court fees. If this is the Government’s response to a finding of non-compliance with the provisions of an international Convention to which it is a Party, I shudder to think what might have happened otherwise. The need for JR has never been greater – as demonstrated by the need to curb the worst excesses of the Government on air pollution.

In previous years, the Scottish Government and the Ministry of Justice have sent representatives to the Task Force meetings. This year, it falls to the Aarhus Focal Point in Defra to defend the UK’s performance. We can only hope that his report of the Meeting to colleagues and the Secretary of State underlines that delivering environmental rights is a cross-departmental exercise and that our performance will be judged at the UK level – both crucial ingredients for Mr Gove’s forthcoming consultation paper on Governance mechanisms.

Carol Day, Legal Consultant for the RSPB.

Follow RSPB @Natures_Voice

The opinions expressed in this blog are the author's and not necessarily those of the wider Link membership