Government is Trying to Put Itself Above Environmental Law, Green Groups Warn

authordefault
on

The UK government hates to be held accountable in court when it breaks environmental laws like those on air quality. So it has created new rules โ€“ย coming into force this week โ€“ย that expose environmental litigants to unlimited financial liabilities, writes Oliver Tickell of The Ecologist.ย Now three leading NGOs have gone to the High Court to argue that the rules themselves are in breach the UK‘s internationalย obligations.

New rules coming into force today will make it virtually impossible to bring a public interest case – like ClientEarth’s air pollution challenge – to protect theย environment.

The new rules weaken financial protection for people or organisations bringing a case against the government, meaning they risk having to pay the government’s full, unlimited legal costs in return for going to court to protect theย environment.

The current rules cap the costs that individuals, community groups and environmental groups have to pay on losing a case against a public body. These caps are currently ยฃ5,000 for individuals and ยฃ10,000 in all otherย cases.

But under the new rules, claimants will have to provide the court with information about their personal finances when applying for Judicial Review. Even if judges decide to set a ‘cap’, or upper limit, on the costs that litigants could be held liable for during the proceedings, they will be able to increase the cap at anyย stage.

The change in rules therefore makes it impossible for public interest litigants to know how much a case will cost from the start. Individual campaigners and charities could therefore find themselves facing costs of tens or even hundreds of thousands of pounds for a High Courtย action.

Costs would only increase if they were to appeal an unfavourable initial judgment to higher courts. Even a High Court win could prove disastrous: if it were to be appealed by the government, they might be unable to afford to defend it given the enormous potential costs of litigation in the Court of Appeal, and the Supremeย Court.

They could then be forced to abandon their case, and be held liable for the government’s costs to date, even if they were actually winning the case up to thatย point.

‘Unlawful’ย Rules

In response ClientEarth, Friends of the Earth and the RSPB have applied in the High Court for a judicial review against the Lord Chancellor and Secretary of State for Justice to challenge what the organisations believe to beย โ€œunlawfulโ€ย new costs rules for environmentalย cases.

The High Court will decide whether to grant permission to proceed with an application for JR in the coming months. In a joint statement, the three groupsย said:

โ€œCharities and NGOs are the main way people can mount an effective challenge to government decisions. We represent lots of concerned individuals who have chosen to pool their resources with us so we can defend nature on their behalf. We are an alliance of thousands of individual citizens who would otherwise lack the means and resources to take an issue to court. Access to justice, on equal terms, is everyone’sย right.โ€

Last week, the House of Lords statutory instruments committee, which reviewed the rules,ย concluded:

โ€œAlthough the MoJ states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in theย courts.โ€ย 

This finding supports the view of campaigners that government’s new rules will make it prohibitively difficult for individuals and environmental groups to bring environmental cases of wide public interest. This includes cases like ClientEarth’s challenge against the UK government over toxic airย pollution.

Internationalย Obligations

A UN committee charged with reviewing access to the court in the UKย also criticised the new rulesย in a report released last Friday (24th February), saying the governmentย โ€œhas not yet fulfilled the requirementsโ€ย specified in an earlier decision as a signatory of the European ‘access to justice law’, the Aarhusย Convention.

Itย also demandsย that the UK government, by 1st April 2017, report onย โ€œthe outcomes of England and Wales cross-government review, together with any other actions it has by then taken, or proposes to take, to ensure that the allocation of costs in all court procedures โ€ฆ subject to article 9 is fair and equitable and not prohibitivelyย expensive.โ€

This information can be used by the court or the defendant to argue that the costs cap can be increased – or even removed altogether – at any stage in the proceedings.ย โ€œThis makes it impossible for people to know how much a case will cost from the start and could force them to withdraw proceedingsโ€, say the three groups,ย โ€œbut not before being exposed to very highย costs.โ€

โ€œNot only is this a huge disincentive to bringing a public interest environmental case. We also believe it breaches EU and international laws on access to justice to which the UK isย Party.โ€

The post-Brexit situation is looking complex. The Aarhus Convention, to which the UK is signatory, is separate to the EU treaties from which Britain is to withdraw, and will continue to apply. However its enforcement mechanisms against miscreant states areย weak.

Separate EU laws, enforceable through the European Court of Justice (ECJ), may become void post-Brexit if the domestic laws that reflect them are repealed. Even of they are not repealed, however, the ECJ will lose its finalย jurisdiction.

This article was cross-posted from Theย Ecologist.

Photo: David Holt via Flickr | CCย 2.0

Get Weekly News Updates

authordefault

Related Posts

on

The new leader of the opposition has regularly criticised the UKโ€™s green ambitions.

The new leader of the opposition has regularly criticised the UKโ€™s green ambitions.
on

Lucy von Sturmer and Duncan Meisel are building communities of creatives dedicated to preventing the advertising and public relations industry from casting polluters as climate saviours.

Lucy von Sturmer and Duncan Meisel are building communities of creatives dedicated to preventing the advertising and public relations industry from casting polluters as climate saviours.
Opinion
on

It's time to come together to collectively work through the anxiety, grief and overwhelm so many of us are experiencing.

It's time to come together to collectively work through the anxiety, grief and overwhelm so many of us are experiencing.
on

UCP pledges to abandon the provinceโ€™s net zero targets, and remove the designation of CO2 as a pollutant.

UCP pledges to abandon the provinceโ€™s net zero targets, and remove the designation of CO2 as a pollutant.