Posts Tagged ‘carol day’

Government proposals threaten environmental justice?

December 8, 2015

Costs Protection in Environmental Claims – access to justice under threat?

Thursday’s article in the Law Society Gazette expresses serious concerns about the Ministry of Justice current consultation on access to environmental justice.  The consultation which closes on Thursday threatens to seriously undermine the recently introduced rules which had previously allowed many claimants access to environmental justice for the first time.

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Carol Day regards the proposal which seeks to confine eligibility to a member of the public could exclude community groups, parish councils and even environmental NGOs from costs protection. The proposals may also exclude legislation impacting on the environment that does not specifically mention the environment in its title or heading (such as environmental taxes, control of chemicals or wastes, exploitation of natural resources and pollution from ships) from review.  The existing, perfectly workable rules were only introduced in 2013 and fully comply with EU and international law.  In the views of many Judicial Review is an essential foundation in the rule of law.

Regular readers might also recall Carol’s guest blog here when she appealed to us all to respond to the proposed changes.  Can we rally and send a mail box full of responses to the MoJ?  Any of you who have been involved in research and collation or putting together ‘bundles’ for a Judicial  Review will understand and appreciate that such work is not undertaken lightly, any of you who have had to find the funds for such action will fully appreciate the difficulties so for government to place more hurdles in communities, an individual or a charities way might forgive us for suggesting it is an affront to democracy?

A letter to The Times today, addressed to Michael Gove MP and signed by Lord Brennan QC, Baroness Kennedy of The Shaws, Dr Elaine King (director of Wildlife & Countryside Link), Lord Lester of Herne Hill QC, Baroness Parminter, Sir Stephen Sedley and Baroness Young of Old Scone deems the proposals to be a ‘backwards step’.  They assert that there is no evidential basis for the changes, a view shared by many who have written extensively on the issue.  The signatories ‘urge the government to withdraw the unjustified and damaging proposals in the interests of protecting the environment, checking the abuse of power and u[pholding the rule of law’.

Readers are encouraged to respond to the Ministry of Justice consultation here.

There is an excellent briefing “Costs Protection in Environmental Claims” via Wildlife and Countryside Link and also one by Friends of the Earth.  The consultation is aimed at organisations, but Mark Avery offers a bit of guidance when it comes to responding to that particular aspect of the proposals.

Hard enough to challenge Public Bodies, statutory agencies and authorities as it is and given they are funded through the public purse there has to be a right of reply?  If politicians words about open, transparent and accountable government are to have any credibility then a legitimate claim should be allowed to anable the public to challenge, in the interests of environmental justice, bad decisions?

Submit responses to the MoJ consultation here:

Costs Protection in Environmental Protection

Deadline for responses Thursday 10 December 2015.

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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.

 

 

 

Causes for celebration?

March 16, 2014

It’s always nice to receive good news or positive outcomes and to be able to congratulate people on achieving best conservation outcomes:

The Badger saga: there was a Backbench Business Committee debate on Thursday 13 March in the ‘House’, see here to watch the debate or to download the transcript.  It is interesting to observe the proceedings and ‘performaces’,  one might be minded to agree that the Independant Expert Panel (IEP) report should have been made available ahead of the debate (as oppossed to being leaked on the day) in order that all MPs could read and understand all the significant findings.  219 to one MPs voted to halt the cull, many justified abstention by indicating that the final IEP Report was required ahead of a debate.  In the interim of the awaited IEP Report, perhaps they should read a few statistics provided by ‘Team Badger’?   The outcome of the debate is not binding upon the Government and thus far the ConDems have carried on in just that manner,  ConDem’ing wildlife and the environment to an uncertain future by clearing away red tape they see as inhibiting development.  What is perhaps equally worrying is a Government who appears deaf to the masses?  Fifty Shades of Grayling a guest blog by Carol Day was another damming view on the Government’s ‘green credentials’ and featured on the well read Standing up for Nature site operated by Mark Avery.   Another recent critique he featured was subsequent to a magazine interview with Dave Webster, CEO of Natural England, entitled What would you have liked to have asked?  it too receives a number of interesting comments. 

It is unfortunate that the Defra website  does not contain up to date information which raises the issue of open and transparent reporting by a Government Department perhaps?  The Defra website then directs you to GOV.UK website for more information, but that only brings you to the end of last year in terms of the IEP.  GOV.UK also provides details of the membership of the IEP.  It is understood and reported in the media that the Minister, Owen Paterson has at long last received the IEP Report, so hopefully it will not be too long before its findings will be made public.  The BBC (television station not Parliamentary Committee) reports that Badger culls were ‘ineffective and failed humaneness test’.

Badger & mayweed

Badger by Tatterdemalion.   Image courtesy of Flickr – Creative Commons license.

A number of email updates were received reporting upon the success of the collaborative coalition to save The Sanctuary a Derby CC Local Nature Reserve.  This was an excellent outcome not only for the wildlife of the site but also that it demonstrated what can be achieved by a collective collaboration of community conservationists.  It is understood that Derby CC press release concludes with this quite stinging comment ‘Derbyshire Wildlife Trust continues to have a service level agreement with the Council to provide expert advice on matters related to the natural environment.  Their compliance with this agreement will now be formally reviewed, and if found to be in breach, the appropriate legal action will be taken’.  It raises the issue of ‘paymasters’ requiring unchallenged compliance and co-operation otherwise potential loss of revenue to anyone with the audacity to challenge?  That was perhaps one of the benefits of forming a collaborative coalition, and was the rationale behind the Forum’s governance model.  There are an array of interesting comments posted, clearly and understandably local conservationists are not planning on complacency and will remain vigilent, long may the network deliver and where statute fails may they be held to account?

It was also pleasing to note that the Open Spaces Society have submitted a objection to the land swop at Beverley.  A timely reminder perhaps that one of the guest speakers at the Forum’s forthcoming Annual Meeting is Emeritus Professor Barbara English who will give a presentation on Beverley Pastures, the natural history and campaigning perspective will be provided by Kieran Sheehan. 

The IUCN have recently produced a glossy PR brochure on UK Peatland Restoration.   A number of geographically diverse case studies are offered but for the analysts of associated costs then there is disappointment and likewise perhaps the superficial reporting but nevertheless it delivers something we (conservation) often fail to celebrate, so well done!  Aimed for the layman rather than the scientist, one might see the benefit of having sufficient printed / CD to provide all 650 MPs in Westminster with a copy?

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.

 

06lowres

 

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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