Access to justice in environmental cases – will UK government do the right thing?

This week the House of Lords debated the compatibility of the Criminal Justice and Courts Bill with the Aarhus Convention.

In a HotAir Blog earlier this month, we explained why this controversial Bill puts environmental justice in the UK at risk.

We also prepared a detailed legal briefing explaining the problems with the Bill – and with English costs rules more generally – and why they are in contravention of the Aarhus Convention – a UN convention which protects access to justice in environmental cases and requires it to not be “prohibitively expensive”.

We also proposed a number of amendments to the Bill designed (i) to prevent the Bill from eroding access to justice in environmental cases further than is already the case, and (ii) to go some way towards rectifying the UK’s existing failures to comply with the Aarhus Convention.

In the debate, on the final day of the Bill’s committee stage in the Lords, Lord Marks of Henley-on-Thames argued that the current attempt to protect Aarhus rights in the Bill was inadequate and proposed a number of amendments to the Bill to rectify the position, including:

  • excluding Aarhus Conventions cases from the majority of the clauses in Part 4 of the Bill
  • providing for a legal aid “exceptional case determination” to be permitted in Aarhus Convention cases
  • restoring the recoverability of “ATE” premiums and “success fees” in Aarhus Convention cases
  • extending the current definition of Aarhus Convention claim in the Civil procedure Rules to all Aarhus Convention claims, including private law cases, where they fall within the scope of the Convention.

Lord Beecham also proposed an amendment which would exclude Aarhus Convention claims from the scope of the Bill.

In response, the Minister (Lord Faulks) expressed concern as to how “Aarhus Convention claim” was defined in the proposed amendments, and in particular as to whether private nuisance cases should be included within the definition (an important point that we stressed in our briefing is that the Aarhus Convention covers both public law and private law environmental cases but the current costs rules for private law cases in the UK make private law environmental cases prohibitively expensive).

The Minister said: “The Government do not accept that all private nuisance claims are caught by the convention requirements”. “[O]n occasions where a private nuisance claim relates to action which do not merely harm the claimant’s private property right but contravene provisions of national law relating to the environment, there are judicial and administrative procedures which may be relied upon by members of the public.” The government therefore still appears to be of the view that the UK costs rules for private law environmental claims are adequate.

However, those comments are at odds with the very recent judgment of the Court of Appeal in Austin v Miller Argent [2014] EWCA Civ 1012, handed down a little over a week ago, where the Court highlighted the importance of private law actions as part of the package of legal avenues available to protect the environment, and stating that it is  “unrealistic to believe that the powers conferred upon public authorities will suffice to achieve the Convention’s objectives. Public bodies are often under staffed and under resourced and do not have the same direct concerns to uphold environmental standards as do members of the public. … action by individuals will be a valuable additional method of ensuring that high environmental standards are maintained.” The Court concluded that they did “not see why in an appropriate case a private nuisance claim should not be treated as one of the judicial procedures referred to in Article 9.3. [of the Aarhus Convention]

The Minister’s view is also at odds with the findings of the Aarhus Compliance Committee – the body tasked with monitoring compliance with the Convention – which has stated on several occasions that in the UK “the law of private nuisance is part of the law relating to the environment”, and therefore within the scope of the Convention. This government’s position also appear to be at odds with the fact that the UK has previously conceded in proceedings before the Aarhus Compliance Committee that at least some private nuisance cases do fall within the scope of the Convention.

A glimmer of hope?

The Minister did, however, say that he will “reflect carefully on the observations” made by Lord Marks of Henley-on-Thames and Lord Beecham, ahead of the report stage in October, and confirmed that “[t]he Government have committed to reviewing the costs regime for environmental cases”.

This is encouraging, and we hope that by the time the Bill reaches its report stage in October, the government will have realised not only that Aarhus Convention cases must be carved-out of the new judicial review provisions in this Bill, but that the government can no longer continue sensibly to contend that private law cases are not included within the scope of the Convention.

The government must start taking steps to prevent access to justice in environmental cases – both public and private law cases – from being “prohibitively expensive”. This Bill is the perfect opportunity for the government to start aligning the UK’s costs regime with it international obligations under the Aarhus Convention.

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2 thoughts on “Access to justice in environmental cases – will UK government do the right thing?

  1. John Hall

    The Uk Government has for 20 years known of the serious dangers if Urban Air Pollution was not taken seriously and now the vast amounts of Epidemiological Research conclusions from most major Countries
    clearly define the huge loss of life directly related to Nitrogen Dioxide ingestion.
    The Royal Commission on Urban Air Pollution started to unravel the evidence which was critical of both major Political Parties,and provided reports which expressed their groups concerns.The result being the Royal Commission Group was disbanded and leading scientists were fragmented in their quest for action.
    There can be no doubt whatsoever that DEFRA,and the The Department of Health creator of Public Health England a huge organisation has no intention of sponsoring the need for cleaner air
    and is content to witness the thousands of attributed deaths in the Uk.
    Such complicity in doing nothing when the WHO clearly denotes the seriousness of Air Pollution related diseases is not denounced vigorously by those fully aware of the facts.
    The AQMA intention was started and then left in the doldrums of non activity by Government Members of Parliament,and the Select Committee appointed to oversee the Urban Air Pollution serious problems were totally complacent to not have a meeting on this subject between 2010 and 2014 denoting a contempt and avoidance of the deaths and suffering being caused to Uk Men,Women,and Children
    Words are cheap when after 20 years no positive action has taken place,and with the increasing numbers of European HGV`s utilising UK roads the added results will become an increasing scandal
    The public must cease becoming collateral damage in the quest for
    commercial exploitation and greed.

  2. John Hall

    Does anyone need further proof of what the real intention is behind this suggested action. #It is to remove embarrassing facts being leaked to the public
    …………………………………………………………………………………………..
    Hundreds of scientists have come out in support of the European Commission’s Chief Scientific Adviser position after calls were made for the job to be scrapped. Talha Khan Burki reports.Research organisations, charities, and academics, including the Royal Institution and the European Academies’ Science Advisory Council, have criticised a proposal by Greenpeace and others calling for the abolition of the post of Chief Scientific Adviser to the president of the European Commission (EC). The science institutes wrote that scrapping the position would “undermine the integrity and independence of scientific advice received at the highest level of the European Commission”. They commended the current Chief Scientific Adviser, Anne Glover, for her rigour and impartiality and affirmed that her opponents were motivated by discontent with her position on genetically modified crops. “Policy makers or lobbyists who seek to remove scientists because they don’t like their findings or advice do so at the peril of their citizens”, they concluded.

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