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  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.