Posts Tagged ‘Ministry of Justice’

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.

120609 CD @ WF 982 hrk

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.


Call for Action: Freedom of Information under threat?

November 15, 2015

The Campaign for Freedom of Information provides a useful resume of the threat to democracy and to those who seek accountability of Public Bodies funded through the public purse.

In July the Government announced that a Commission would be set up to to examine the FOI Act and consider what further restrictions should be imposed on the right to know.

The Prime Minister also confirmed that policy responsibility for Freedom of Information policy will transfer from the Ministry of Justice to the Cabinet Office. This change will be effective from 17 July 2015.

After sitting for 3 months, the Commission has now finally invited the public to submit evidence to it.  The Consultation closes this Friday, 20 November 2015 and we understand that the results are promised by the end of November!

Already 140 campaign groups and media bodies and others have written to the Prime Minister expressing concerns about the composition and terms of reference of the Commission.

Readers have a week to compose a response to the consultation, will this campaign to clamp down on open transparent governance and accounting attract as good a response as the recent attempts to ‘challenge’ the Habitats Directives? That consultation we understand attracted some 552,471 responses!

The Campaign are asking people to consider some easy actions:

Respond to the consultation drawing on your own experience of the value of the FOI Act

Write to your MP

Submit your FOI stories to

Sign a petition, 38 degree petition to Protect FoI Laws here

There is also a petition option for journalists to sign, via here

Public Bodies are required to have regard and to comply with the Freedom of Information Act.  Whilst many are efficient and indeed helpful there are other Public Bodies which publish material without provision of primary source evidence, there are Public Bodies which try to evade compliance through selective narrative and dissembling, some Public Bodies assert applicants are persistent / vexatious complainers in an endaevour to avoid providing information about activity or spend of public funds, is this demonstrable open and transparent conduct of business?  To avoid wasting time and suffering such problems readers might like to consider using using Whatdotheyknow as a tool to submit FoI requests.  The benefit of this route is that any request is public, anyone researching the Public Body you are seeking information from can also benefit from the information you receive.  It is visible to the entire world wide web (www).  Even when Whatdotheyknow is utilised, there is often only partial success but that is illustrative of compliance level as well as tactics used by Public Bodies?  Please note other options are available and the Forum has no ‘Interest’ in this website, but we do recognise the excellent service it provides to members of the public and researchers.  Whatdotheyknow are also appealing to people to act to save FoI

Comments on the My Society page suggests that they would like to see it expanded not curtailed, bring it on?  There are also some interesting suggestions as to the reason behind the Prime Minister’s plans?



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.

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 ( and you can also respond to the consultation paper here:

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 (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.




Erosion of opportunities to protect the environment?

October 2, 2015

Costs Protection in Environmental Claims: Proposals to revise the costs capping for eligible environmental challenges.

Following the earlier ‘consultatiuon’ Reform of Judicial Review by the Ministry of Justice in July 2015, the MoJ have launched the second review around the public’s opportunity to consider challenging any statutory agency or authority through the Judicial Reveiew process.  Costs Protection in Environmental Claims: Proposals to revise the costs capping for eligible environmental challenges.

We wonder how many readers have been involved in any JR application?  From experience we would offer that for the lay person, or any small organisation who seeks to legitimately question a Public Body never mind ‘challenge’ it, it is not something one would undertake lightly.

It is inordinately expensive if you use professional legal advice and anyone would be advised to, it is equally extremely time consuming to put together the ‘bundles’ required in which evidence is presented.  It is perhaps different for Public Bodies as they are generally in receipt of public funds and have paid staff.

So, that the Government now appears to seek to further close down an already arduous ‘assault course’ might be suggestive of a discriminatory approach?  It would be difficult to offer it up as an inclusive, none discriminatory democratic option for legitimate question when all other avenues have been explored and failed?

The duration of the consultation is from 17 September 2015 until 10 December 2015.

Useful background reading:

Criminal Justice and Courts Bill, Fact Sheet: Reform of Judicial Review

Reform of Judicial Review: Proposals for the provision and use of financial information

Law Society Response to the first consultation

Readers are also encouraged to read Carol Day’s excellent Guest Blog on the issue on Martin Harper’s RSPB web page.




BIRDING SITE GUIDE - Birding Site Guide

Quis custodiet ipsos custodes?

Hatfield Moors Birding Blog

Bird and other wildlife information service for Hatfield Moors, South Yorkshire, UK © HMBSG 17/11/2010

Mark Avery

Quis custodiet ipsos custodes?

a new nature blog

I write about politics, nature + the environment. Some posts are serious, some not. These are my views, I don't do any promotional stuff and these views are not being expressed for anyone who employs me.

UK and Ireland Natural History Bloggers

Quis custodiet ipsos custodes?