Criminal Justice and Courts Bill

Written evidence submitted by Royal Society for the Protection of Birds (RSPB) and Friends of the Earth (FOE) (CJC 36)

Summary

This evidence is submitted on behalf of the Royal Society for the Protection of Birds (RSPB) and Friends of the Earth (FOE). It sets out our concerns about provisions of Part 4 of the Bill concerning Judicial Review (JR).

We do not, of course, support the use of legal mechanisms to delay sound decisions from being implemented. However, JR is one of the last mechanisms available to civil society through which they can challenge the decisions of public bodies. This is critical to uphold the rule of law and enable a functioning, just and democratic society. We are concerned that provisions in Part 4 of the Bill will deter civil society from bringing and intervening in environmental cases (regardless of the merits) by making the threat of costs uncertain and intimidating. This could return the UK to non-compliance with key provisions of EU and international law, as recently confirmed by the European Court of Justice, and result in a further loss of trust at the public and decision-makers.

The constraints imposed by Part 4 of the Bill compound recent amendments to the process of JR, which have little or no apparent evidential basis and which have been widely opposed by environmental and public interest groups.

Background

1. In order to understand our concerns about Part 4 of the Bill, it is important to summarise recent changes to the costs regime for environmental cases.

2. In 2005, the UK Government ratified the UNECE Aarhus Convention [1] . Article 9(4) of the Convention requires contracting Parties to ensure that legal review mechanisms in respect of the environment provide "adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive".

3. The wording of Article 9(4) of the Convention was subsequently imported into EU law via EC Directive 2003/35/EC [2] providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending existing EC Directives on Environmental Impact Assessment [3] and Integrated Pollution Prevention and Control [4] (IPPC).

4. In 2005, a Coalition of NGOs [5] , of which we are both members, submitted a complaint to the European Commission alleging the UK was in breach of the access to justice provisions of the PPD (and specifically the requirement that legal proceedings be not "prohibitively expensive") [6] . At around this time, the Coalition also acted as Amicus curiae to the Aarhus Convention Compliance Committee (ACCC) in Geneva in parallel proceedings against the UK on prohibitive expense [7] .

5. In October 2011, the ACCC concluded that the UK did not comply with Article 9(4) of the Aarhus Convention concerning prohibitive expense [8] . On 13th February 2014, the Court of Justice of the European Union (CJEU) handed down its final judgment in Case C-530/11 (Commission v UK) [9] , holding that the UK was in breach of the provisions of the PPD concerning prohibitive expense. The judgment confirmed a number of requirements in relation to costs in environmental cases, including (inter alia) a requirement that claimants in environmental cases have certainty as to their legal rights and, thus, to the financial liability they may incur as a result of undertaking the proceedings [10] .

6. In response to the findings of the ACCC and the Commission’s infraction proceedings, a new costs regime for environmental (Aarhus) cases was introduced in England and Wales on 1st April 2013. The regime limits adverse costs liability to £5,000 for individuals and £10,000 for all other cases. Special provisions were also introduced in relation to the granting of interim relief in environmental cases.

7. In order to ensure continuing compliance with the Aarhus Convention and the PPD, the UK must ensure that individual and groups embarking on environmental cases must not be exposed to prohibitive expense.

Part 4 – Judicial Review

The importance of Judicial Review

8. JR very often represents a mechanism of last resort for individuals and civil society groups to protect the environment. The foundations of democracy require that citizens have access to effective mechanisms to ensure the decisions of public bodies are lawful - indeed a lawful process of decision making is a minimum requirement for environmental protection. Such cases are not minor matters. They often concern complex legal arguments of unlawful behaviour by public bodies. Individuals and groups should not be denied their fundamental constitutional right to check an abuse of power on the basis of saving Government money, speeding up decision-making processes or cutting red tape.

9. Proposed changes to the process of JR should therefore be afforded the highest scrutiny by the Public Bill Committee, which must ultimately be satisfied that its effectiveness is not undermined and that the UK remains fully in compliance with its obligations under EU and international law.

Information about financial resources (Clauses 51 and 52)

10. Clause 51 of the Bill requires applicants in JR to provide the court with any information about the financing of the application. Clause 52 requires the court to consider whether to order costs to be paid by a person, other than a party to the proceedings, who is identified in that information as someone who is providing financial support for the purposes of the proceedings or likely or able to do so.

11. We are concerned about these requirements for a number of reasons. First, the requirement to disclose financial information about non-parties is likely to deter people from making a decision to fund JR – and thus prevent applicants from being able to bring cases. In our experience, JR is already a sufficiently daunting prospect for local people, campaign groups and charities, and it is only used as a last resort. It should, however, remain an option available to people in order to hold decision-makers to account.

12. Secondly, the proposal conflicts with the findings of the CJEU in Case C-530/11, in that individuals and/or NGOs (who may not even be party to the proceedings) will be exposed to uncertainty as to whether they face any financial liability as a result of the claimant losing the case (and, if so, to what extent).

13. We recognise the need for appropriate transparency and for the court to have access to proportionate information. We are concerned, however, that these provisions could result in campaign groups and small informal groups in local communities being unable to fundraise and secure local support in order to progress cases (regardless of their merits) for fear that people will become liable for further costs being imposed on them by the court. We urge the Committee to recommend the removal of this provision from the Bill.

Interveners and capping of costs (Clause 53)

14. Clause 53 of the Bill enables the High Court and Court of Appeal (subject to exceptional circumstances) to order an intervener to pay any costs that the court considers have been incurred by a party to the proceedings as a result of the intervener’s involvement in the proceedings.

15. We have always understood that those who apply to intervene in a case do so on the basis that they will be responsible for their own legal costs and will not seek to recover all, or any, of their legal costs from either party. Indeed, that is the basis upon which we, as members of CAJE, intervened in important environmental cases before the Court of Appeal, including Morgan v Baker [11] (in which the Court expressly recognised that the requirement that cases be "not prohibitively expensive" applies to the totality of a case, including potential liability for adverse costs - and that the Aarhus Convention is capable of applying to private law cases) and Garner [12] (in which the Court stated inter alia that a purely subjective approach as to whether review procedures be "not prohibitively expensive" under the PPD is inconsistent with the objectives underlying the Directive).

16. We believe the assumption that those seeking to intervene in a case may have to pay any additional costs incurred by a party would conflict with the aims of the Aarhus Convention. The rationale behind the access to justice pillar of the Convention is to provide procedures and remedies to members of the public so they can have the rights enshrined in the Convention enforced by law. Access to justice helps to create a level playing field for the public seeking to enforce these rights. It also helps to strengthen the Parties’ implementation of, and compliance with, the Convention as well as the effective application of national laws relating to the environment. The public’s ability to help enforce environmental law adds important resources to government efforts. Individuals and groups can fulfil this vital function not only by bringing cases, but also by highlighting or emphasising important environmental legal and/or factual issues by way of intervention. The imposition of measures that frustrate the ability of civil society to ensure the rights enshrined in the Convention are enforced are obstructive and retrograde.

17. Moreover, the Impact Assessment [13] (IA) published by the Ministry of Justice in support of this proposal contains no evidence that interveners impose additional costs on the parties (presumably because they are invariably focusing on the points raised by the case). The IA states: "Treasury Solicitors and the Administrative Court do not hold a central record of the average costs which interveners generate for claimants or for defendants as a result of their intervention, and which interveners might be liable to pay in future as a result of the reforms. This was also not captured by MoJ’s review of JR court case files".

18. In order to monetise the impact of the reforms for the purpose of providing an EANCB figure, the Ministry of Justice has assumed that interveners might be liable to meet on average around 5% of total legal costs. We would question why the Government would press ahead with this proposal in the absence of empirical data and in light of an explicit recognition that interveners can "add value, supporting the court to establish context and facts [14] ". We therefore urge the Committee to recommend Clause 53 is removed from the Bill.

19. We are also concerned that at present environmental cases will be included within clauses 54 and 55 unless separate regulations are made, as at present clause 56 is not an absolute requirement. We would request that regulations are required to ensure that specific provisions are provided for environmental cases and the individuals and groups that bring them.

Additional concerns

Procedural defects (clause 50)

20. Clause 50 of the Bill seeks to amend the Senior Courts Act 1981 so that a case could not proceed unless it was considered that it was "highly likely" that the outcome would have been different if the correct procedure had been followed.

21. We do not support this provision of the Bill for a number of reasons. Firstly, the judiciary is already able to consider cases against a "no difference" threshold, which we believe is the correct approach. Secondly, a substantial number of cases involving procedural flaws usually mean a failure to properly consult or hear the views of individuals. The imposition of a "no difference" threshold would be a very subjective assessment from the Court, making them step into the shoes of the executive.

22. We would also point out that JR is about fairness. If an unfair procedure is followed it is inevitably hard to find instances where it is clear that the outcome would have been the same under a fair process. So, for that reason the courts are rightly reluctant to hold that it would have made no difference. But the fact that the court already has a flexible power to reach this conclusion in appropriate cases means that this clause is in practice unnecessary.

23. The RSPB and FoE welcome clause 45.

Conclusion

24. The RSPB and FoE hope that this written evidence is helpful to the Committee in its forthcoming debate on Part 4 of the Bill. We can provide more information about many of the points raised upon request and would also welcome the opportunity to give oral evidence before the Committee if that would be of assistance.

March 2014 


[1] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters – text available here: http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf

[2] The Public Participation Directive or PPD

[3] EIA Directive

[4] IPPC Directive

[5] The Coalition for Access to Justice for the Environment (CAJE)

[6] Case C-530/11 Commission v UK

[7] Communication C33 – documentation available here: http://www.unece.org/env/pp/compliance/Compliancecommittee/33TableUK.html

[8] See http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-33/Findings/C33_Findings.pdf

[9] Judgment available here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=147843&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=34589

[10] Commission v UK (C-530/11), para 34

[11] (1) Francis Morgan (2) Catherine Baker (Appellants) v Hinton Organics (WESSEX) LTD (Respondent) & CAJE (Intervenor) [2010] 1 Costs LR 1

[12] R (on the application of Garner) (Appellant) v Elmbridge Borough Council (Respondent) & (1) Gladedale Group Ltd (2) Network Rail Infrastructure Ltd (Interested Parties) [2010] EWCA Civ 1006

[13] See https://consult.justice.gov.uk/digital-communications/judicial-review, page 10

[14] See Paragraph 62 of the Ministry of Justice’s Response to Further Reforms to Judicial Review available at: https://consult.justice.gov.uk/digital-communications/judicial-review

Prepared 28th March 2014