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Unnecessary change will emasculate
environmental law

The Government has recently consulted on proposals to change cost rules for environmental Judicial Review (JR). If introduced, these changes would create profound difficulties for the nature of charity funding, and their cumulative effect will be to deter all but the very rich from pursuing environmental cases.

June 2016

Equally troubling is the fact that the Government published no accompanying narrative, evidence or empirical data with the proposals to suggest that change is necessary. On the contrary, statistics demonstrate that, while environmental cases represent less than 1% of the total number of JRs lodged annually, they demonstrate high success rates - proving they play an essential role in upholding the rule of law and protecting the environment.

Link submitted considered responses to the Government’s proposals and, earlier this year, 28 Link members wrote to the Justice Secretary, Michael Gove MP, pointing out the extreme difficulties they would present for charities and environmental litigation. As yet, the Secretary of State has not responded and, as the UK’s presentation to the Task Force meeting pre-empts the EU Referendum, we can assume the UK will say little.

In 2015, the UK sent five civil servants to the UNECE Task Force Meeting on Access to Justice. This year, the UK will be making a presentation on the current proposals for costs in environmental cases via skype. One assumes the ‘no-show’ is less about pre-empting the outcome of the EU Referendum and more about a lack of resources (or perhaps appetite?) to explain why the Governments of England, Wales and Northern Ireland are proposing to emasculate new costs rules for environmental Judicial Reviews introduced in 2013.

At the last Task Force meeting, I emphasised the new costs rules were giving many claimants access to justice for the first time in years. The UK delegation agreed to a photograph, but refused to be drawn on the outcome of a cross-Government review on the Aarhus Convention conducted earlier that year.

A month later, the Ministry of Justice consulted on proposals giving effect to provisions of the Criminal Justice and Courts Act 2015, obliging the judiciary to consider making costs order against third parties to Judicial Review proceedings. The proposals would require claimants to provide details of third party funding above a threshold of £1,500 and charities or NGO bodies corporate to provide the names and addresses of their members.

Two months later, the MoJ consulted on proposed changes to the Civil Procedures Rules in respect of costs in environmental cases. The proposals included confining eligibility for costs protection to a member of the public (thus apparently excluding community groups and even environmental NGOs from costs protection), making costs protection contingent on obtaining permission to apply for JR, and replacing the current fixed adverse costs caps of 5k (individuals) and 10k (all other cases) with higher caps (potentially doubled). The proposals also included enabling the defendant and the court to challenge the level of the cap at any point in the proceedings and awarding separate costs caps in multiple-claimant cases. Similar proposals were subsequently consulted upon in Northern Ireland, despite there being only 11 Aarhus claims and no applications for interim relief in NI between April 2013 and December 2015.

During this time, other changes to JR procedure were taking effect, including a doubling of the Administrative Court fee in England and Wales to just under £1,000, exposing interveners to potential costs orders and removing the right to an oral hearing in cases deemed “totally without merit”.

One ray of hope on access to justice exists, however, in Scotland. Earlier this year, the Scottish Government extended the categories of persons eligible for a Protected Expenses Order and it has recently invited views on further improvements to access to environmental justice, including the possible establishment of a specialist environmental court or tribunal. These are exciting proposals, which will hopefully result in an informed debate about the future of environmental justice.

Carol Day

Vice Chair, Wildlife and Countryside Link's Legal Strategy Group

Legal Consultant, RSPB

Find me on twitter @CHatton_Day

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