On Friday, Matt Shardlow, Chief Executive of Buglife, visited our Headquarters at the Lodge. We went for a walk about the reserve, saw a pair of Hobbies enjoyed the sunshine and put in the world to rights. In passing, we discussed imminent changes to the Judicial Review system - the very system that we used to overturn the Government's decision to cull up to a fifth of Lesser Black Backed Gull population on the Ribble Estuary (here). Some of the changes being proposed are quite extraordinary. My colleague, Carol Day (who is a legal consultant for the RSPB and a Solicitor in private practice), has been working on this issue with Matt through Wildlife and Countryside Link and so I asked her to share her thinking on this issue.
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Have you ever thought being a member of an environmental charity might expose you to the costs of its litigation? While the possibility has almost certainly never crossed your mind - it has passed the Government’s. A Ministry of Justice consultation closing today seeks views on exposing third parties to the cost of litigation, with profound implications for charities and environmental protection.
In the Foreword to the consultation (here), the Lord Chancellor and Secretary of State for Justice (Michael Gove) confirms the Government’s commitment to Judicial Review - the mechanism by which you and I can challenge the decisions made by public bodies in court - as an “essential foundation of the rule of law”.
However, while the Government supports the rule of law, it also believes that JR is being “misused” by claimants, including NGOs intent on immobilising the UK’s economic recovery. Earlier this year, the Government passed the Criminal Justice and Courts Act 2015 to make JR (amongst other things) more challenging. The Act requires applicants to provide information on the funding of JR applications where either a third party has provided a charity with funding in excess of £1,500 towards the costs of litigation or a charitable company is relying on donations and/or grants to cover the costs of progressing a JR. In the latter case, the charity is required to provide the names and addresses of its members, as well as their interest in the JR. In both of these circumstances, the judge is then obliged to consider making a costs order against third parties in unsuccessful proceedings.
If enacted, these proposals will threaten the general funding available to charities and reduce the ability and willingness of charities to apply for JR. They are also fundamentally unsuitable to environmental cases, in which claimants are not seeking pecuniary benefit but the protection of natural assets for the benefit of present and future generations.
It is equally worrying that the proposals have been developed in the absence of any evidence to show that JR is being “misused”. They are also absurd in light of the contribution environmental cases make to the maintenance of the rule of law. Data obtained from the MoJ* confirms that, on average, 24% of environmental JRs are successful for the claimant (contrasting with a success rate of 2% for all cases in 2014). Thus, while environmental cases represent a tiny proportion of the total lodged annually (some 136 of 20,000 ie 0.007%), they have very high success rates when compared to cases taken as a whole and perform a valuable service in holding public bodies to account.
Wildlife and Countryside Link is arguing that the potential exposure of charity donors and funders to legal cost orders offends the basic principles of justice. It is calling for charities and environmental cases to be exempt from the unworkable and burdensome proposals set out in the MoJ’s consultation paper.
* Data obtained by Leigh Day covering the period April 2013 to March 2015
Sounds a bit like the EU Directives - where is the evidence ? Which also reflects an attitude in Government that simply isn't prepared to do the hard work to ensure decisions are properly thought through - and therefor not vulnerable to JR. Mr Gove has something of a track record of off the top of the head, whim rather than fact led decision making.
On the surface this is a serious headache for decision makers in bodies like RSPB. However, as best exemplified by the forest sales fiasco under the coalition, this sort of action doesn't necessarily make the problem go away - in fact, the opposite - it makes it more likely that opposition breaks out in a more direct and difficult to deal with shape. And whilst you might expect (again, as with the forests) Government supporters to be in favour of this sort of action, just wait till a bosky, middle class village full of senior London lawyers finds it has been blocked from opposing a windfarm or fracking.