access to environmental justice - an update
In the autumn edition of environmental law
news, we examined some of the developments in relation to access to
justice in environmental matters from May 2008 to March
2010. In this edition, we provide you with an update.
By way of a reminder, currently, UK procedure and rules pose a
threat to campaigners who, if they pursue a matter through the
courts and lose, risk paying their opponent’s huge legal costs,
often running to tens of thousands of pounds and more. Many
argue that this runs counter to the Aarhus Convention on Access to
Information, Public Participation in Decision-Making and Access to
Justice in Environmental Matters, ratified by the UK in 2005.
Article 9 of the Convention ‘Access to Justice’ provides that
procedures are to provide adequate and effective remedies ... and
be fair, equitable, timely and not prohibitively expensive.
September 2010 – Aarhus Convention Compliance Committee’s
findings in three cases brought against the UK
The Compliance Committee has found that the UK has breached
Article 9 of the Convention. A summary of the facts of each
case together with the Committee’s findings can be found
below. Advance edited copies can be accessed by following
these links, courtesy of www.unece.org:
DEFRA’s implementation report (see October 2010 below)
refers to the Compliance Committee’s findings on access to
environmental and explains some of the steps that the Government is
taking to deal with them.
September 2010 – the Working Group on Access to Environmental
Justice publishes an Update Report and condemns the use of
PCOs
Having reported initially in May 2008 (see the autumn edition of environmental
law news), the Working Group on Access to Environmental
Justice published an update report in September 2010, Ensuring
Access to Environmental Justice in England and Wales – Update
Report.
The Working Group’s original report in 2008 recommended that the
costs regime should be altered, but, seeking changes that could be
made "relatively easily and quickly within the existing legal
framework" focused on recommendations to improve the
existing Protective Costs Orders system.
In the Update Report, the Working Group has changed its
direction and now recommends "qualified one way costs
shifting" that Lord Justice Jackson proposed in his Review of
Civil Litigation Costs (qualified one way costs shifting is
explained in the autumn edition of environmental law
news). The Working Group proposals contain a
different formulation, however, from that set out by Lord Justice
Jackson.
The Working Group has abandoned Protective Costs Orders as a way
forward, owing to recent English case law which has reduced their
utility in the environmental field, to a recent case brought
against Ireland by the European Commission and to an Opinion
delivered in the current litigation (see below).
The Working Group’s conclusions are set out at paragraphs 25 to
35 and the
full report can be viewed online courtesy of the WWF.
October 2010 - consultation on the implementation of the Aarhus
Convention in the UK
Parties to the Aarhus Convention are required to compile a
report on their implementation of the Convention before each
meeting of the parties. The last meeting of the parties was
in July 2011.
On 15 October 2010, the Department for Environment, Food and
Rural Affairs (DEFRA) launched a consultation on the UK’s draft
report. The consultation ran until 17 November 2010.
DEFRA submitted its final report to the Convention Secretariat in
December 2010 and
this can be viewed on the UNECE website.
December 2010 – Supreme Court Decision: R (on the
application of Edwards and another) v Environment Agency and
others [2010] UKSC 57
In December the Supreme Court held, in this case, that it was
not for costs officers, through detailed assessment, to implement
the Aarhus Convention’s Article 9 requirement that procedures
should not be ‘prohibitively expensive’.
Whether the review procedure was ‘prohibitively expensive’ was
for the court to address, most desirably at the outset of
proceedings. However, the court could also consider this at
the end of proceedings and set a limit on the paying party’s
liability.
The Supreme Court found that the test as to whether proceedings
were ‘prohibitively expensive’ was in a state of uncertainty.
It referred the question as to whether the test was an objective or
subjective one to the ECJ for a preliminary ruling.
A full copy of the judgment can be accessed through BAILII.
April 2011 – European Commission announces proceedings against
the UK
In the autumn edition of
environmental law news, we reported that in
March 2010, (following receipt of a first written warning ("Letter
of Formal Notice")) the European Commission issued the UK with a
final written warning ("Reasoned Opinion") in relation to the
prohibitively high costs of pursuing environmental litigation which
runs counter to European legislation (as well as the Aarhus
Convention).
We explained that if the UK did not comply with the final
written warning, it could be called before the European Court of
Justice (ECJ). In April 2011, the European Commission
announced that it was indeed taking the UK to the ECJ, noting that
over a year had passed since it issued the UK with its final
written warning and that the UK had failed to address its concerns
through legislation.
Failure to comply with a judgment of the European Court of
Justice can ultimately result in financial penalties running to
millions of Euros.
