Access to environmental justice ‘is failing’, say NGOs

A “deteriorating… uninviting and challenging” legal regime is deterring the pursuit of environmental challenges through the courts, say Friends of the Earth and the RSPB.

Their joint A Pillar of Justice report, released today, found that access to environmental justice is failing due to changes made by the government over the past six years.

It echoes the views of the Aarhus Convention’s compliance committee, which found in the spring that compliance with the international agreement’s obligations on environmental justice had worsened.  The UK had “marked shortcomings” it said, principally in ensuring that the cost of undertaking legal action is not “prohibitively expensive”.

Based on Ministry of Justice figures, the number of claims being made is declining, which the report says is linked to a loss of public confidence in the justice system.

In 2015/16, there were around 15 applications per month for cases covered by the Aarhus Convention, which requires signatories to ease access to environmental justice. The figure has since fallen to less than 11.

Carol Day, solicitor for the RSPB said: “Access to justice is a fundamental right and the UK Government is committed under international law to make legal action on environmental cases affordable for individuals, communities and NGOs. However, bit by bit this system is being dismantled. There has never been a greater need to ensure that public bodies can be challenged when the legality of their decisions are in question and the environment is under threat.”

Will Rundle, head of legal for Friends of the Earth, said: “We are living in a climate crisis, yet we do not yet have the effective justice system we need to hold the dangerous and unlawful decisions of public bodies to account – this must change. The system needs to facilitate public interest environmental claimants and not deter them, because at heart, protecting nature and making sure of good environmental governance is in everyone’s interests and must be fought for.”

The report supports implementing a series of reforms, among them:

  • Setting a fixed maximum cost cap of £5,000 for individuals and £10,000 in other cases.

  • Tougher rules to deter public authorities from abusing their stronger financial position by challenging eligibility for costs protection.

  • Clearer rules and guidance to ensure that claimants receive the full benefit of Aarhus protections.

 

The report notes a “worrying” reduction in success rates at trial, the report says. “Between 1999 and 2002, the likelihood of success for environmental JR was 7%, however today it is nearly half that figure,” it added.

The observation is not readily explainable, though the report offers some insights. One of these, “is that public bodies, operating in an increasingly litigious society, have got better at making lawful decisions,” or at least ones that are less easy to challenge. At the same time, there is no reason to suspect an increase in poorer cases, or that any small change in the judges presiding over them could be to blame.

A final possibility is that there has been “a change in judicial culture more broadly”, the report said, following government statements that judicial reviews are being abused with nuisance claims that act as a brake on economic growth.

The observation is particularly concerning considering that the planned Office for Environmental Protection could use judicial review to ensure the government keeps on the right side of the law, the campaigners said.

The report demands a full review into the phenomenon.

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