Readers of this blog may remember that earlier this year the RSPB, Friends of the Earth and ClientEarth began legal action against the Ministry of Justice because of new rules brought in by the UK government which made it harder for people in England and Wales to go to court to protect the environment (see here). Last Friday, the High Court ruled in our favour, when Mr Justice Dove said that crucial additions were needed to bring the rules within the law, bringing a week of triumphs on environmental justice to a fulfilling end.

The rules, introduced in February 2017, scrapped fixed costs limits which capped how much people and charities had to pay if they lost a case against a public body. Before this, the cost cap had been set at £5,000 for individuals and £10,000 in all other cases. This provided upfront certainty as to the extent of one’s financial liability before embarking on a Judicial Review. Now, as a result of the High Court’s ruling, caps will still be fixed at the beginning of a case and can only be changed in exceptional cases, giving people and charities the early financial certainty they need when they stand up for the environment.

The RSPB only resorts to legal action as a method of last resort and when all other options have been exhausted, but it is a vital backstop as demonstrated in our successful challenge of the proposed Ribble gull cull.

Lesser black-backed gull - one of the species which had been targeted for a cull on the Ribble (image courtesy of Tim Melling)

As a result of taking this legal action the circumstances in which the costs caps can be varied in later stages are now confined to those in which the NGO or individual has effectively provided the court with misleading or inaccurate financial information or their financial situation has significantly changed as a result, for example, of a lottery win. This means that NGOs and individuals once again enjoy certainty as to the extent of their financial liability at an early stage of the case. The rulings also means that claimants will no longer have to expose their private financial details in open court when applying for judicial review, as these hearings will now take place in private. The Ministry of Justice will need to make changes to the rules as soon as possible to achieve this.

But as David Hart QC puts it “…it is dispiriting that it takes a judicial review for Government seriously to engage with the costs problems and practicalities facing environmental claimants - despite these having been spelt out time and time again by NGOs and judges here and in Europe.”

As mentioned earlier, last week was a very good week for access to justice. Peers debated a Motion laid by Lord Marks QC of Henley-upon-Thames expressing profound regret at the changes to the costs regime. We were inspired by the quality of the debate, with persuasive and passionate speeches from numerous Peers including the former RSPB Chief Executive Baroness Young, Baroness Parminter and Lord Pannick QC. The overriding theme was the recognition of the vital role that groups like the RSPB play in defending nature and the environment. The outcome was a defeat for the Government as the vote was carried by 164 votes to 97 – not bad for a normally quiet mid-week dinner slot just before the party conferences.

Last week, colleagues also attended a Meeting of the Parties to an international Convention governing access to justice (the Aarhus Convention) during which the UK conceded that it must take urgent action to make environmental legal action less expensive and more accessible.

The rule of law is an essential pillar of any democracy in which effective administrative and judicial procedures provide a necessary check on the abuse of power and the protection of public freedoms, such as the environment.

The judgment is vital in the face of the UK’s proposed exit from the EU. Without oversight from EU institutions and with uncertainty of what will replace the European Court of Justice, it is down to UK citizens and organisations to challenge decisions affecting the environment. This means that the protection of our air, water, countryside and wildlife will rely upon the courts, so everyone must be able to access them. The government is claiming that judicial review and parliamentary process are sufficient to replace the oversight of the EU. If people and charities are hindered by uncertain court costs, our environment could be at real risk.

  • Great stuff once again from the RSPB and partners. While this my go unnoticed by many birders and members, nevertheless these victories are brilliant and very very important indeed for wildlife protection. I would add that it is shame on this Government that rather than supporting NGOs in their efforts to protect nature they have tried and failed through these cases, to make it much more difficult for NGOs. Thank goodness fo the RSPB.