Environmental justice at risk as Westminster debates controversial bill

Environmental justice in the UK is at a critical crossroads, as the House of Lords is currently debating the Criminal Justice and Courts Bill. The compatibility of this bill with the Aarhus Convention – a UN convention which protects access to justice in environmental cases – is crucial. The Aarhus Convention requires the UK to provide the public with access to environmental justice that is fair, equitable, timely and not prohibitively expensive. Current UK laws have already been found to fall short of the requirements of the convention, and this bill is set to make matters worse.

We have written a briefing for Parliament which shows that the Criminal Justice and Courts Bill, and the costs rules in the UK, are not currently compatible with the Aarhus Convention. To protect environmental justice, we have proposed four amendments to the Bill and sent our ideas to prominent parliamentarians. You can read the full briefing or an executive summary.

Access to justice in the UK

Despite having one of the most highly regarded legal professions and respected judiciaries in the world, access to justice in the UK courts for ordinary people leaves a lot to be desired. This is primarily due to two things: (i) the high cost of legal services in the UK (which can result in legal bills running into many hundreds of thousands of pounds); and (ii) the “loser pays” principle, which means that, in general, the losing party pays both their own legal costs, and those of the winning party.

This means that bringing a court case in the UK is an enormous gamble. Either you win the case and get your costs paid by your opponent, or you lose the case and are left picking up the bill for your own legal costs and your opponent’s. These costs can easily run into hundreds of thousands of pounds, and it is often very difficult to predict at the start of the case whether you are going to win or lose the case and how much the costs bill is likely to come to at the end.

It is, however, vitally important that members of the public – not just big companies and high net worth individuals – are able to take disputes to court. If people cannot access the courts, breaches of the law will go unchallenged and losses will go uncompensated.

Over the years, a number of tools have been created to try and help ordinary people afford to take cases to court. These include:

  • legal aid i.e. funding from the state to enable someone to pay for a lawyer. A legally aided person is also normally largely exempt from paying their opponent’s costs;
  • introducing “no win, no fee” agreements called “conditional fee agreements”, where a lawyer takes the case on the basis that if the client loses, they won’t be charged for it, but if they win the case, the lawyers will charge his ordinary fees plus an extra fee (called an “uplift” or “success fee”). The extra fee is, essentially, the lawyer’s price for taking on the risk of losing. Where the client wins, the “loser pays” principle means that the lawyers’ fees will be paid by the opponent, so the client should not be left out of pocket.
  • the introduction of “after-the-event” insurance. This is insurance to cover the risk of being ordered to pay your opponent’s costs if you lose the case. The insurance company will charge a premium, which can be very large.

Unfortunately, over the past few years, the UK has passed laws which make it a lot more difficult for claimants to use these tools to fund their cases. In particular, in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the government:

  • drastically restricted the availability of legal aid in the UK;
  • introduced a rule that if you hire your lawyer on a no win, no fee basis, you cannot claim the “success fee” from your opponent, even if you win the case. This means that even if you win, you wil still have a substantial legal bill to pay out of your own money at the end of the case;
  • introduced a rule that if you buy after-the-event insurance against the risk of having to pay your opponent’s costs, you cannot recover the premium from your opponent, even if you win the case.

These changes mean that a claimant who uses a conditional fee agreement, insurance, or both (the two are often used together), and who ultimately wins their case, will be left substantially out of pocket because they will have to pay the “success fee” and the insurance premium out of their own money. If, on the other hand, the claimant doesn’t use a conditional fee arrangement or insurance, they will be in a better position if they win the case (because they will recover their costs from their opponent), but will face a huge loss if they lose the claim (because they will have to pay their own legal team and the other side’s legal team, all out of their own money).

This means claimants are are likely to be left of pocket regardless of whether they win or lose the case and, in many cases, people will simply never start the claim. The risks and expense are just too great.

What does this mean for cases brought to protect the environment?

In environmental cases, some help is at hand. In 2005, the UK signed up to a UN treaty known as the Aarhus Convention. This is an international convention which guarantees members of the public the right to access environmental information, the right of public participation in environmental decision-making, and the right to access to justice where environmental laws are broken.

The Convention also provides that access to justice, including access to the courts, where environmental laws and rights and have been breached must be “fair, equitable, timely and not prohibitively expensive.

Because it is so expensive for ordinary people to take cases to court in the UK, a number of complaints have been made to the Aarhus Compliance Committee – the body which monitors compliance with the Aarhus Convention – about the costs rules in the UK. The Aarhus Compliance Committee has found on several occasions that the UK rules fall short of the requirements of the Convention.

As a result, last year the UK introduced a new rule that entitles claimants in some environmental cases to have the amount they must pay for their opponent’s costs (if they lose the case) capped at £5,000 (for individuals) or £10,000 (for organisations). This is known as “cost capping”.

This is a fantastic step forward. It means that, at the start of an environmental case, the claimant  knows that their maximum liability for their opponent’s costs at the end of the case will be either £5,000 or £10,000. Whilst that is still a lot of money for most people, it is a lot better than starting a case with the risk that you might have to pay £100,000 or more to your opponent if you lose.

However, there are still a number of significant problems with the rules. In particular:

  • Scope of the caps: the new rules only apply to “judicial review” cases. A judicial review case is one where a member of the public challenges the decision of a public body (like a local council, or the government) in court. The new cost caps do not therefore apply if a claimant wants to bring a case against a private company, e.g. the operators of a factory emitting pollution in their local area. That kind of case would normally be brought under nuisance laws. Those sorts of cases are not within the new rule and are therefore still prohibitively expensive for most people. This is a big problem and the Aarhus Compliance Committee says it is a breach of the Aarhus Convention.
  • Cross-cap: the new rules provide that a claimant who is entitled to the £5,000 or £10,000 costs cap can recover no more than £35,000 of their own costs from their opponent if they win the case. This means that if you spend £50,000 paying your lawyers and win your case, you will only be entitled to recover £35,000 of that from your opponent. Many people will still not be able to afford to take that risk.
  • Amount of caps: even the caps of £5,000 or £10,000 will be too expensive for some people. Some people will still need help in the form of legal aid, no win, no fee arrangements and after-the-event insurance to bring the case.

What does the Criminal Justice and Courts Bill have to do with this?

The Criminal Justice and Courts Bill is currently being debated by Parliament. Part four of the Bill is about “judicial review” and contains a number of provisions which aim to make it more difficult for claimants to bring judicial review proceedings against public bodies.

These changes are not limited to environmental cases, but they will make it even harder for people to take environmental cases to court. These proposals are therefore likely to put the UK in even further breach of the Aarhus Convention.

One of the clauses in the Bill, for example, would require claimants in environmental cases to disclose detailed information about how they are financing the case. The court must then use that information to decide whether to order that the costs of the cases should be paid by someone other than either of the parties in the case. This requirement is likely to deter people from making donations or otherwise helping fund a case brought to protect the environment.

Another clause of the Bill would require organisations (like ClientEarth) which provide assistance to the court, known as an ‘intervention’, to pay everyone’s costs associated with that intervention. This is despite the fact that interventions are widely recognised as being beneficial and only happen when the judge expressly gives permission. The new rules will mean that only those with plenty of money will be able to intervene in judicial cases and not-for-profit organisations will no longer be able to contribute.

The bill also introduces new cost-capping rules to replace some of the existing rules. However, there is a lot of uncertainty about how these will apply to environmental cases, and whether  the existing cost caps for environmental judicial review cases will remain in place.

The Bill is undoubtedly a backwards step for access to justice in environmental in the UK.

What needs to be done?

First, the Bill must contain a provision which excludes Aarhus Convention claims from the new rules. This will prevent the Bill from taking access to justice in environmental cases backwards.

Secondly, the Bill is a good opportunity to take start rectifying the UK’s failures to comply with the Aarhus Convention. We have prepared a set of proposed amendments that would constitute a new “Part 5 – Environmental cases” in the Bill. These proposals would:

  • extend the existing cost caps for environmental cases to all Aarhus Convention claims and not just judicial review claims;
  • allow an “exceptional case determination” to made to grants legal aid where a failure to do so would breach Aarhus Convention rights (this is already possible where a failure to grant legal aid would breach rights guaranteed by the Human Rights Act 1998 or EU law rights);
  • allow claimants in Aarhus Convention cases to recover “success fees” and after-the-event insurance premiums if they win their cases.

For full detail of our proposals and the reasoning behind them, read our legal briefing: “Access to Justice in environmental case in the UK and the Criminal Justice and Courts Bill”

 

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