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Legal Strategy

The Legal Strategy Group seeks to improve the creation, implementation and enforcement of English Law to better protect the natural environment by bringing together legal experts from across the NGO community to identify and take opportunities to provide support to members and working groups in the implementation, defence and development of environmental law. The group will also consider access to environmental justice issues.

Co-Chair: Matthew Stanton, WWF-UK
Co-Chair: Richard Benwell, Wildfowl and Wetlands Trust
Vice Chair: Carol Day, RSPB
Head of Policy and Campaigns: Dan Pescod, Link

Update from the Group:

Brexit Implications

Link’s Legal Strategy Group is focussing on how best to retain the suite of environmental and animal welfare protections afforded by EU legislation once the UK leaves the EU. The Group is working on these Brexit issues with Greener UK, Sustain and others.

In the summer, the Group developed a Link response to the Government’s consultation on principles and governance.

The Government has promised that, when the UK leaves the EU, it would put in place a “world-leading” green watchdog to uphold high environmental standards. However, the proposals in the consultation document pointed to the creation of far weaker post-Brexit governance than that which is in place currently under the European Commission and Court of Justice. Not least, the watchdog the Government envisaged in the consultation document would not have the legal “teeth” to take public bodies to court or to issue fines. Key environmental principles such as preventive action to avert environmental damage and the “polluter pays” principle might not have strong legal weight, and instead be enshrined merely in a “policy statement”.

Link pointed out the deficiencies of the proposed watchdog and policy statement on environmental principles, and is calling for the truly world-class governance we need to help reverse the drastic decline in nature we have seen these past decades.

Access to Justice

In September 2017 three members of Link's Legal Strategy Group (RSPB, Friends of the Earth and Client Earth) secured a huge victory, with a High Court ruling that the UK Government that must change its rules for environmental cases to protect those taking legal action from incurring unreasonable costs. Mr Justice Dove stated that costs should remain capped at the beginning of a case, giving more certainty to individuals or charities bringing a case to court.

As a result of the ruling, a number of amendments to the Civil Procedure Rules came into effect on 6 April 2018. These include (i) clarification on the nature and extent of financial information that must be provided when applying for Judicial Review (including third party support) and (ii) the circumstances in which late variations to the default cap can be made.

The European Court of Justice recently handed down another judgment on “prohibitive expense” (Case C-470/16). Link Legal Strategy Group members RSPB and Friends of the Earth have written to the Ministry of Justice in light of the judgment, as a further change to the Civil Procedure Rules is required.

Judicial Review

The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment, including the right to access justice and challenge public decisions on environmental law.

In December 2017, Link Legal Strategy Group members RSPB and Friends of the Earth, along with Friends of the Earth Scotland and law firm Leigh Day, asked the Aarhus Convention’s Compliance Committee (the ACCC) to investigate the UK’s process for reviewing the legality of certain decisions that fall under the Convention.

Currently, UK courts conducting a Judicial Review of a public body’s decision on an environmentally important matter will not overturn that public body’s decision unless they deem it so outrageous as to be perverse. That is a very high bar to pass, and the organisations mentioned above question whether it is too high to fit with the UK’s commitments to the Aarhus convention.

We hope to have the Committee’s findings in 2019.

For further information, contact Dan Pescod, Link’s Head of Policy and Campaigns.

Last updated: 28 September 2018