What price democracy? A Guest Blog by Carol Day.

The Executive are delighted that Carol Day, environmental law specialist offers us an insight into recent proposals to change access to ‘challenge’ of statute for poor or bad decisions ….

Carol then encourages us all to respond to the Ministry of Justice’s Consultation.

120609 CD @ WF 982 hrk

What price democracy?

The rule of law in the UK dates from the signing of the Magna Carta in 1215. It is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. Unfortunately, in the wake of recent and current proposals from the Ministry of Justice (MOJ) it feels increasingly like the latter to those of us working in the world of environmental law.

Judicial Review (JR) is the last and almost the sole mechanism for civil society to challenge the decisions of public bodies and achieve a remedy in the courts. But the process of JR is being systematically dismantled and proposals launched by the MOJ in September will make it nigh on impossible for anyone to challenge the decisions of public bodies on key issues such as a third terminal at Heathrow or High Speed 2.

In July, the MOJ consulted on proposals requiring claimants to provide information about third parties who have provided funding in support of litigation with a view to the court making costs orders against them. The proposals were presumably not crafted to deter people from joining or donating to charities – but that is likely to be the result. The most recent proposals are far less opaque.

After a decade of domestic and international scrutiny, the Government introduced bespoke costs rules for environmental cases to comply with EU and international law. The new rules offer the vast majority of claimants’ access to environmental justice for the first time in years. While repeatedly emphasising the importance of maintaining the rule of law, proposals launched in September will render environmental litigation unworkable and return the UK to non-compliance with EU law and a UNECE Convention called the Aarhus Convention.

There is no evidence to suggest the new rules have led to a proliferation of environmental cases. Information obtained from the MOJ under the EIRs confirms the number of environmental cases did not increase at all following their introduction in April 2013. There were 118 cases in 2013-2014 and 153 in 2014-2015 representing less than 1% of the total number of JRs annually (20,000).

Environmental cases are also “good value for money”. Between 2013 and 2015, nearly half (48%) of environmental cases were granted permission to proceed, contrasting with a figure of 16% for all cases in 2014 and 7% in the first quarter of 2015. Over the same period, 24% of environmental cases were successful for the claimant, contrasting with a success rate of 2% for all cases in 2014. So, while environmental cases represent a tiny proportion of the total, they play an essential role in checking the abuse of power and upholding the rule of law.

On the upside, the proposals include extending costs protection to certain statutory reviews (e.g. some appeals under Town and Country Planning legislation), but the remaining measures are nothing less than death by a thousand cuts. They include:

  • Confining eligibility for costs protection to a member of the public (thus potentially excluding community groups, Parish Councils and even environmental NGOs);
  • Making costs protection contingent on obtaining permission to proceed with JR, thus exposing claimants to thousands of pounds worth of legal costs if they are unsuccessful in obtaining permission;
  • Raising the “default caps” on adverse costs liability from £5,000 (individuals) and £10,000 (other cases) to £10,000 and £20,000, which – together with own legal costs (£25,000) renders legal action wholly unaffordable for the vast majority of society;
  • Allowing defendants to apply to increase, or even remove altogether, the level of the default caps – thus exposing claimants to higher or unlimited legal costs;
  • Applying separate costs caps to individual claimants so that cases submitted by more than one individual or group attract higher costs liability;
  • Making it more onerous to apply for interim relief (an injunction) to prevent serious and irreparable harm to the environment while the legal action is ongoing.

The combined effect of the proposals is that the process of applying for JR will be so expensive and onerous that people will be dissuaded from even trying. If you value the right to challenge the decisions of public bodies you think are unlawful, please ask your MP to write to the Justice Committee about an inquiry into the future of Judicial Review in England and Wales.

Please contact Carol if you’d like more information about the proposals (cday@leighday.co.uk) and you can also respond to the consultation paper here: https://consult.justice.gov.uk/digital-communications/costs-protection-in-environmental-claims

The response is an online option, but for readers whose network might include people without access to the internet or good rural broadband then contact your MP and ask them to help you respond.  MPs can be found via http://www.theyworkforyou.com (although experience shows that this site does not always provide accurate information, something of a ‘postcode’ lottery I fear) or via the Parliament website.

Read also the background paper Costs Protection in Environmental Claim: Proposals to revise the cost capping scheme for eligible environmental challenges.

 

 

 

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