Posts Tagged ‘aarhus convention’

What price democracy? A Guest Blog by Carol Day.

October 20, 2015

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.

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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.

 

 

 

Politics and environmental conservation

May 21, 2013

Whatever your views on the UK’s membership of the EU, it has to be said that there have been some landmark ECJ cases which are down to the Habitats Directive, the Aarhus Convention and the like.  Would those same victories have been secured in the UK courts?  It was thanks to the requirements of the Habitats Directive that the future of Thorne and Hatfield Moors SSSI, also Natura 2000 sites were secured.  That is not to say they are not still threatened but they are in theory better protected.

 

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There have been a number of reviews over the last couple of years which have seen erosion of protection of Sites of Special Scientific Interest.  In March 2012 the UK Government published its Report of the Habitats and Wild Birds Directives Implementation Review.

The Forum made a submission  to the subsequent consultation as did many environmental organisations.

Then in February 2013 there followed the Triennial Review of the Environment Agency and Natural England, this is seen by some as a variation on the aftermath of 1997 when the statutory protection agency was dubbed a “Muzzled Watchdog” as English Nature morphed into Natural England.  What will be the outcome of this latest review, the muzzle has been removed but are they now toothless?  See Mark Avery’s guest blog for 17 January if you think theat Defra agencies are effective.  See also A Summary of Stakeholders Views to try to work out what future for statutory environmental protection.  Another excellent erudite analysis by Carol Day is to be found in another of Mark’s guest blogs under “The UK and Environmental democracy – the Aarhus end of nowhere?” 

So, whilst there is much to concern us about EU membership, by leaving in a headlong fashion without first ensuring that the environment is not completely “culled” from the agenda, consider the salutory offerings of Friends of the Earth, who issued a recent press release, in it they suggest that ….

Abandoning UK membership of  the EU, or even a partial withdrawal, would pose a significant threat to our environment, Friends of the Earth warns today (Tuesday 14 May 2013).

A new Friends of the Earth briefing, published today, the Implications for UK Environmental Policy of a Vote to Exit the EU, written by Dr Charlotte Burns of the University of York – an expert in European Union environment policy and processes – says:

· UK membership of the EU has led to cleaner drinking water, cleaner bathing beaches and cleaner air and better protection of our wildlife;

· Frequent attempts by UK ministers to weaken progressive environmental policy at the European level suggests that there will be a weakening of the nation’s environmental policy if we are not subject to EU rules;

· A partial EU withdrawal (membership of the free-trade zone), the most popular option in recent poll of Conservative members earlier, would leave the UK covered by most EU environmental laws (which the UK would have no influence over) – but not all. For example the UK would not be covered by the Birds Directive, Bathing Waters Directive and the Habitats Directive.

Friends of  the Earth’s Policy and Campaigns Director Craig Bennett said:

“UK withdrawal from the EU – partially or completely – could have an enormous  impact on our green and pleasant land.

“Our membership has led to cleaner drinking water, beaches and air and better protection for our wildlife.

“If we want to avoid a return to our reputation as the dirty man of Europe we must stay in the EU.”

Remember the words of Edmund Burke who offered that “Nobody made a greater mistake than he who did nothing because he could only do a little”, factor in the rise of the internet tools such as online petitions and campaign blogs and you begin to contemplate the power of the collective ….

 

 

 


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