Judge Sturgess once famously said that justice is open to anyone in the same way as the Ritz Hotel –anyone can walk in but only the rich can afford to order. Current moves by the Ministry of Justice to further restrict the process of Judicial Review (JR) will once again make this quote very apt for environmental claimants unless legal action lodged last week by the RSPB, Friends of the Earth and ClientEarth can prevent them going ahead. Our action has already been covered in the press (for example see here and here), but I thought it would be helpful for my colleague, Carol Day (who is a lawyer) to explain why we have taken this action.
For many years, the RSPB has been part of a coalition of environmental NGOs working on environmental justice - with the culmination of EU and UNECE complaint processes leading to the introduction of bespoke costs rules for environmental cases in April 2013. The beauty of the 2013 regime was that it capped the costs an environmental claimant was required to pay the defendant on losing a case (£5,000 for individuals; £10,000 in all other cases), thereby providing certainty as to the extent of one’s financial liability before embarking on JR. The capped sums are still sizable by anyone’s standards, but far less onerous than walking into court with a blank cheque book and, as such, provided many sectors of society with access to justice for the first time.
However, the regime was short-lived. On 3rd February 2017, the Ministry of Justice laid a Statutory Instrument before Parliament introducing amendments to the bespoke rules which came into effect just over three weeks later [yesterday]. Environmental claimants are now required to submit information about their financial resources when applying for JR (including disclosing any third party funding) and the rules introduce a “hybrid” approach, whereby the costs cap is set at an initial default level (the current caps), but can be varied by the Court on the basis of the financial information submitted at any time during the proceedings.
The RSPB is not a litigious organisation by nature. Prior to the introduction of the 2013 regime, we had taken just five JRs (to protect key sites such as Lappel Bank, the Cairngorms and our reserve near Derry Airport and to challenge licences granted for the killing of cormorants on the River Wye and Barnacle geese on Islay). We have taken three cases since April 2013 to challenge the lawfulness of the Lydd Airport expansion, gull culling on the Ribble Estuary SPA and the consents for the four offshore windfarms in the Firth of Forth.
Lesser black-backed gull - one of the species which had been targeted for a cull on the Ribble (image courtesy of Tim Melling)
Removing the element of advance certainty with regard to costs will make a significant difference to the number of cases able to be taken especially for smaller specialist NGOs, community groups and individuals resulting in a massive step back for access to environmental justice.
Our concerns are shared by the House of Lords Secondary Legislation Scrutiny Committee, which in referring to evidence submitted by the RSPB, Friends of the Earth and ClientEarth concluded that:
“Although the Ministry of Justice states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts”.
We have taken the important step of applying for permission to JR in the High Court with colleagues in the environmental movement because the threats to nature and the environment have never been greater. At this time of great uncertainty we must ensure that civil society has access to robust UK procedures to ensure public bodies act lawfully. The achievement of the breadth of our work relies on a range of tools and mechanisms of which legal action is an important strand of last resort. 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.
A final thought as to how this nasty policy of this Government might, at least be,partly nullified and that would be to form an alliance of, say five or six of the conservation and environmental campaigning NGOs and for each of them to agree in advance of any particular legal action against the Government, to share any costs that may result, amongst them. One would hope that even if such a legal action was not directly in line with the particular interests of one or some of the NGO's in the alliance that, nevertheless, they would support cost sharing. A protocol to this effect would need to be drawn up.
Alternatively, some type of group insurance policy might be arranged.
I think the only way to combat this Government's nasty policies towards conservation and the environment is for campaigning NGOs to work ever more closely together. For one NGO to act alone will very likely be too much for it and the Government would just "pick it off".We cannot let this Government trash our wildlife and our environment.
I would just add, that earlier this week I attended a presentation on the conservation of Australia's highly threatened flora and fauna by a leading NGO. It was so encouraging to note how much support was being given to these conservation efforts by Government people and organisations. WHAT a contrast to this Government!!!
Nothing but the fullest support for this RSPB and FoE in this legal case. Like so many other actions this Government has taken recently, this one is designed to make supporting wildlife and the Environment much more difficult. This shameful Government action is just one more designed to tie the hands of environmental campaigners. The prime minister says she wishes to have a fairer society. This action by the Justice Department of her Government makes a mockery of that statement.and demonstrates how hollow and meaningless her statement is.
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