Written for The Ecologist, published 30th November 2015
One of the founding principles of the democratic process is the concept of "natural justice" – that all should be equal before the law, and that biased or questionable decisions by public authorities should be open to review by independent courts. A key enabler of natural justice that the costs of accessing judicial procedures should be affordable to all – otherwise, on economic grounds, those basic democratic guarantees fail to exist for the poorest in society, and may be abused by the most wealthy.
In a variety of ways, over the last few years the Government has deliberately set out to undermine the public's expectations for 'natural justice'. They have sought to apply policy in a more dictatorial manner – reducing consultation, while at the same time making it much harder to challenge bad decisions via the courts, and have removed legal aid to support many people's access to justice.
Today, from employment tribunals to the highest court in the land, it is now much harder, and much more expensive, to challenge unjust decisions.
Now another attempt to weaken the public's rights to obtain justice is under-way.
Since September the Government have been running a little-publicised consultation on 'reforming' court costs. The proposals would diminish the financial protection for members of the public bringing environmental law cases before the courts in England and Wales (Scotland and Northern Ireland are also likely to review their procedures if they change in England).
The consultation closes on 10th December. If carried through it could have a chilling effect on environmental law and regulation in Britain – just as the budgets of our environmental regulators are set to be slashed.
In November 2012, in his speech to the Confederation of British Industry, David Cameron summarised his strategy to make Britain a great industrial power once more –
"Consultations, impact assessments, audits, reviews, stakeholder management, securing professional buy-in, complying with EU procurement rules, assessing sector feedback this is not how we became one of the most powerful, prosperous nations on earth...
So I am determined to change this. Here's how:
Citing the struggle against Hitler in the Second World War, he continued this theme by stating –
"...this country is in the economic equivalent of war today and we need the same spirit. We need to forget about crossing every 't' and dotting every 'i' and we need to throw everything we've got at winning in this global race."
In what can best be described as his 'dictatorship project', those reforms are pretty much complete.
The Government does now consult less; it has worked to restrict the application of EU law, in areas such as environmental assessment; and more significantly, through procedural and legal reforms – most notably the much criticised reforms of the Criminal Justice and Courts Act 2015 – our ability to seek redress for bad decisions through the courts has been obstructed.
In terms of the public's ability to access justice, it is now harder and more expensive to secure a judicial review. And no longer can unions or campaign groups sponsor individuals to bring cases – anyone sponsoring a person is now equally liable for any costs which might result from the case.
Arguably the Conservative's current 'austerity agenda' would have run into many more legal challenges, which would have slowed its progress, had the Government not made these changes first.
Now that steam-rollering of austerity is being applied specifically to environmental law.
There are, however, a few remaining stumbling blocks to the Government being able to impose its will without legal challenge from the public (though most of these could be removed if Britain left the European Union… which perhaps throws a new light on that debate too).
The United Nations Economic Committee for Europe's (UNECE) Aarhus Convention creates common rights to environmental justice and access to environmental information right across Europe. The UNECE is not part of the European Union. It is bigger, covering non-EU states and Russia.
Britain signed up to the UNECE's Aarhus Convention in 1998, and ratified it in 2005. Since then the Government has been expected to implement minimum standards for public participation in environmental decision-making, access to environmental information, and access to judicial review on environmental matters.
If you've ever tried to get information from the Government or a local authority, and wondered why 'environmental information' gets treated differently to everything else, this is why.
Reviewing a decision by the Government or a public agency can be very expensive – often requiring those bringing the case must demonstrate that they have £100,000 to £150,000 of assets in order to pay costs should they lose the case.
This has always been a significant barrier to challenging bad decisions, even for the larger national campaign groups. Of course for medium and large businesses those sorts of costs are not a barrier when often there are millions of pounds at stake.
It was this economic inequality of access to justice which the 'affordability' clauses of the Aarhus Convention were designed to address.
As a result of a case brought in relation to the cement works in Rugby in 2003, in 2013 the Government decided that costs in 'environment cases' should be capped for members of the public at £5,000 – or £10,000 in the case of local or national groups. This was enacted in the Civil Procedure Rules which govern the conduct of cases (although those same rules have been tightened to enact David Cameron's efforts to reduce challenges to official decision-making).
Of course, if Britain has ratified this Convention, the Government can't just ignore these requirements… can they?
What the Government are seeking to do with their current consultation is very subtle – and will be difficult for many without legal experience to understand fully.
They are making very carefully worded changes to the definitions which British courts use in their interpretation of the public's rights under the Convention. And of course, being a process based upon rules and procedure, how certain terms are defined has a significant impact upon how our Convention rights can be exercised.
Firstly, what is 'environmental law'?
The Department of Justice state that not all legal challenges are covered by the Convention's costs protection requirements. That is because they narrowly interpret Aarhus protection as applying only to European directives on environmental matters – not to UK-specific planning or heritage/conservation law even where it involves 'the environment'.
This means that many decisions which the public might want to challenge, especially those on planning, would not have their costs capped.
The next significant change is the definition of what constitutes a 'member of the public'.
The Department of Justice claim that –
"...wording of the current rules does not expressly specify the types of claimant which are eligible for costs protection".
In other words, when the Convention definition states 'member of the public', they take that to mean a single person – not a collection of people.
That could exclude local and national groups from launching actions on behalf of their members. And while currently the costs cap of £5,000 or £10,000 applies irrespective of how many people bring a case, in future it would be £5,000 or £10,000 per person involved – significantly raising the costs to a community bringing a joint case.
Perhaps the most chilling part of these proposals relates to the timing for when costs protection is granted to those bringing a case.
Currently those applying for judicial review are told immediately if they can get costs protection for their case – and if their case fails at this first hurdle, they still only have to pay £5,000 or £10,000 at most in costs.
What the Department of justice propose is that the public must succeed with getting leave to appeal before they are told if they can have costs protection. That would mean that those bringing the action, if they fail to get leave, might be sued by the opposing party for their full costs in defending the application – effectively preventing anyone without the means from the risk of bringing even a well-founded case before the court.
To bring environmental costs into line with recent reforms to court procedure, it is also proposed that the level of costs for those bringing the case should reflect their means.
The effects of these changes are complex:
Firstly, the Department of Justice proposed to raise the minimum cost from £5,000 (individuals) and £10,000 (groups) to £10,000 and £20,000 – or more. They are also proposing that the defendant in the case should be able to apply to have those figures raised if they believe those bringing the case have the means to pay.
Where will those defending the case get that financial information to argue for more?
Those who bring the case – irrespective of the defendant being a government department or a commercial company – will have to divulged their entire personal financial circumstances to all parties involved in the action.
Secondly, when bringing a case, those involved can claim that it qualifies for a costs cap under the Aarhus Convention, and the court will rule on that. Currently those defending the case have to bring an expensive, separate legal action against the court's decision in order to challenge eligibility for the cap.
What the Department of Justice propose is that the defendant should be able to cheaply challenge the right of the parties to cap their costs under the Aarhus Convention. This would create further delay and costs.
Taken together, what these proposals would create is a system:
The stated aim is to deter challenges from the public. With a nod to the objectives stated in David Cameron's speech to the CBI in 2012, the consultation paper states that these measures are intended to –
...minimise the grant of costs protection in unmeritorious cases and act as a disincentive against bringing unmeritorious challenges to cause delay.
As outlined by groups who have challenged these proposals, such as Wildlife and Countryside Link, no evidence has been produced by the Department of Justice to demonstrate that such 'vexatious' claims are being brought today.
For example, of all the requests for judicial review in the courts which the Department provided data for, only 2% are granted. However, for the 'environmental' cases, which represent less than 1% of all the cases brought to the courts, around 24% are given leave to appeal.
What the Government's own statistics show is that environmental cases are far less 'vexatious' than the other cases routinely brought before the court.
The fact that the Department of Justice still believe that environmental cases are vexatious demonstrates – in line with David Cameron's comments in 2012 – that the Government holds an unreasonable ideological objection to environmental cases being brought by the public.
What is more significant about these proposals, if enacted, is that their full effect will not be understood for another two or three years.
The major impact upon environmental regulation in Britain today was the 'bonfire of the Quangos' back in 2010/11. Though budgets have been cut recently, environmental regulators – both nationally and locally – have been able to provide at least a notional protection of the environment (although practically that level of protection varies widely across the UK).
What is proposed at present are even greater levels of budget cuts than were enacted under the previous coalition government.
The Department for the Environment, Food and Rural Affairs' (DEFRA) budget, which funds the Environment Agency and other national environmental regulators, is being cut by half. The Department for Communities and Local Government (DCLG), which funds planning, environmental and public health within local authorities, is being cut by almost a third.
Arguably the result of 'deregulatory' measures such as this, the last time they were enacted in the 1980s, was the creation of problems such as BSE.
The level of these cuts will necessitate less staff, less monitoring and less detailed investigations – and thus result in far poorer decision-making and protection of the natural world and public health. Arguably they will no longer be able to meet their obligations to the public under the law.
If the public are unable to challenge their regulators because they cannot muster the resources to do so, then any such failures are financially unactionable – and thus will pass unchallenged. The Government's policies of 'environmental austerity' will be able to proceed unhindered by adverse legal rulings from the courts.
Of course developers and polluters, who have the wherewith-all to challenge the decisions of environmental and planning agencies, will be able to get away with more. Regulators will not have the budget to defend against any potential challenge to their decisions by well-funded corporations and large landowners – and will have to back down in the face of concerted resistance to regulatory measures.
If regulators are unable or unwilling to act, and the courts are beyond the reach of the average person, what the Government's policy is likely to produce is more direct action to prevent damage to the natural environment and local communities.
That's not a wish, or a prediction, it's experience. That's exactly what happened in the late 1980s/early 1990s with issues such as the roads programme.
Where any state deliberately seeks to impose its will irrespective of the wishes of its citizens, protest, to varying degrees, is usually the result. As shown recently in the case of 'fracking', official indifference begets local resistance.
I believe it is essential that as many people as possible reply, in whatever manner they are able, to the Department of Justice's consultation on costs – before the 10th December deadline.
More significantly, looking two or three years ahead, when current cuts to environmental regulators have fully taken their toll, I believe it will become essential for the public to put themselves in the way of any actions which damage the environment. If current cuts go through, regulators will be unable to do the job on their behalf.
The European Court of Justice may yet over-rule the Government's reforms of the costs system for environmental cases. But remember that cement works case which began in 2003? – it wasn't resolved until ten years later.
Even if the Government eventually lost a challenge via the UNECE, it could be at least six or eight years before that resulted in change. The business community – who Cameron addressed his agenda to in 2012 – can do a lot of irreversible damage to our environment in that time. It's an unwelcome reality, but without action by the public David Cameron's ideological pursuit of 'growth at any cost' will proceed unopposed.