Environmental judicial review is “prohibitively expensive”, uncertain and insufficient

31 August 2010 by David Hart KC

A Geneva-based international committee has just said (provisionally) that domestic judicial review law is in breach of international law in environmental cases. Why? And does it matter? In this post we will try and explain why, and suggest that it does matter.

On 25 August 2010, the UN-ECE Aarhus Compliance Committee issued draft rulings in two long-running environmental challenges which, if confirmed, may have wide implications for how environmental judicial reviews are conducted in the UK. A key finding was that such challenges were “prohibitively expensive” to mount and this puts the UK in breach of its “access to justice” obligations under Article 9(4) of the Aarhus Convention. In addition, the Committee ruled that the UK’s grounds for judicial review of the substantive legality of decisions were too narrow, and said that the domestic rules as to timing of these challenges were insufficiently certain.

The first draft ruling (ACCC/C/2008/27) concerned a challenge by a residents’ association, Cultra, to a proposed expansion of Belfast City Airport. Cultra’s judicial review, alleging breach of domestic planning and environmental rules, was dismissed and the judge ordered Cultra and other residents’ organisations to pay the Department’s costs in the sum of £39,454. In conventional costs terms, a not unexpected outcome given that the challenge had failed; “costs follow the event”.

In the second case (ACCC/C/2008/33), NGOs and a private individual wished to challenge a government licence enabling the Port of Tyne to dump and cap highly contaminated dredgings in the sea bed some 4 miles offshore, but were deterred by the costs rules in England and Wales.

In both cases, breaches of the Aarhus Convention were found by the Committee.

The Convention

What is the Convention, and equally importantly, what is the status of the Committee which has made these wide-ranging draft rulings? The UN Economic Commission for Europe (UN-ECE) concluded this Convention at Aarhus in 1998 and it entered into force for the UK in May 2005 shortly after the UK ratified it. It sets out rules on access to information, public participation, and access to justice in environmental matters. Of these three requirements, these cases concern the third, access to justice.

What then are the key provisions of the Convention in issue? In Article 9(2), it requires members of the public to have access to a review procedure “to challenge the substantive and procedural legality” of any decision.

Article 9(3) of the Convention obliges parties to ensure that members of the public have “access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

Article 9(4) requires that those procedures “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.”

Whilst the UK is a party to the Convention, it has not directly incorporated it into domestic law (save in two specific contexts where it was required to do so by European law, namely under the IPPC Directive and the EIA Directive). The UK’s line to date has been that its domestic law was already compliant with the Convention’s requirements. If the Committee’s ruling is confirmed, it will need to revisit that line.

The draft rulings

In each case, the Committee found that the challenges fell within the scope of Article 9(3), and that there were breaches of the Article 9(4) obligation to provide a procedure which was not prohibitively expensive.

In the Belfast case, the Committee found that the quantum of costs of £39,454 was prohibitively expensive for a claimant bringing a judicial review. It stressed that the reference to “fair” in Article 9(4) was to what was fair to the claimant, not to the defendant public body. It hence found that the costs order was unfair to the claimant. (see a similar draft finding in another Committee decision (ACCC/C/2008/23), criticising a decision by the Court of Appeal in Morgan & Baker v. Hinton Organics [2009] EWCA Civ 107). It does not explain what costs order would not be prohibitively expensive, and why, though the Morgan Committee decision saying that an order in the sum of £5,130 was not prohibitively expensive may give us some sort of slender clue as to where that line is to be drawn.

The reasoning in the Port of Tyne case is far more wide-ranging. The Committee, after looking at the various domestic rules on costs (including legal aid, Protective Costs Orders, and Conditional Fee Agreements), said that it was considering the “cost system as a whole and in a systemic manner” (para.126). It thought that “at least four problems emerge with the legal system of [England and Wales],” namely (i) the very limited circumstances in which Protective Costs Orders (PCOs) were granted under the Corner House rules, (ii) the limiting effect on the claimant’s recoverable costs if a PCO was granted (leading to lack of equality of arms), (iii) the potential effect of cross-undertakings on a Claimant’s damages, and (iv) the fact that the public interest of the environmental claims is not “in and of itself given sufficient consideration” (para.127).

Many of these criticisms are not new, and can be found in the Sullivan Report of May 2008, a report chaired by an experienced planning and environmental judge who now sits in the Court of Appeal. Of particular interest is the finding in para.133 of the Port of Tyne case that the considerable discretion given to the courts on costs led to noteworthy uncertainty on the costs to be faced by claimants legitimately pursuing environmental challenges. The Committee made specific reference to the Court of Appeal’s judgment in Morgan (supra). The Court held that the principles of the Convention are “at most” a factor which it “may”, not must, take into account “along with a number of other factors, such as fairness to the defendant”. That approach, the Committee held, was not compliant with Article 9(4). The Committee was thus drawing a contrast between domestic law as it stood (without direct implementation of the Convention) and the express terms of the Convention. Therefore, said the Committee, to ensure compliance with the Convention, domestic costs laws would have to change.

If those conclusions were not enough, the Committee in the Port of Tyne case made other criticisms of the judicial review system. The first went to the rules as to timing. CPR 54.1 says that a judicial review must be filed “promptly and in event within 3 months.” The Committee thought that the requirement for promptitude, as interpreted by such cases as Finn-Kelsey [2008] EWCA Civ.1067, injected significant uncertainty for claimants, and also that there was considerable judicial discretion as to when the 3 months period started to run. Hence, in failing to set a clear minimum time, the UK was in breach of its obligations under Article 9(4).

Finally, the Committee in the Port of Tyne case got drawn into the controversial question of where someone can challenge a decision on the grounds of its substantive legality. The domestic battle-lines of this debate are reasonably clear. In a purely domestic dispute, a party can only succeed if he or she shows that a decision is Wednesbury irrational. As any public lawyer knows, this is an onerous test. However, if the issue is one determined by EU or ECHR law, the test is a more balanced one – was the decision proportionate? – the balance being between the decision and the effect the decision has upon those affected by it.

The Committee, unsurprisingly, had no difficulties with the proportionality test drawn from international law. It, however, “was not convinced that” the Wednesbury test “meets the standards for review required by the Convention as regards substantive legality” see Article 9(2) above. However, it did not go as far as ruling that the UK was in breach of its obligations under Articles 9(2) and 9(3), it appears because the point did not directly arise in the absence of a domestic decision taking the narrower view about the criteria underlying domestic challenge.

Conclusion

It will not be a very happy day for supporters of domestic judicial review if the Committee confirms its draft decision, both on substantive and costs issues. The latter are potentially more soluble – Jackson LJ’s proposals that there should be a one-way costs shifting regime in certain judicial reviews (protecting claimants) would cure the problem, if adopted, in that it would not be necessary to modify the rules about PCOs to make them more claimant-friendly.

The substantive side of things is far more difficult – not least because the Aarhus Convention’s reach is limited to environmental cases. Hence, strict compliance with the Aarhus Committee’s decisions would require no more than that in environmental cases (and no other) the standard of review was changed from Wednesbury to proportionality. The domestic judiciary has readily absorbed that test in EU cases, where the test is laid down by the formally dominant rulings of the ECJ. Whether it will be quite as meek in the light of the Committee’s decision must be very much more doubtful. The decision of an international law body, however persuasive, will not automatically be followed, as we have seen time and time again as our courts “distinguish” decisions of the Strasbourg Court in controversial areas.

More fundamentally, the judges have found it anomalous to have different rules applying to environmental and non-environmental cases, as the Court of Appeal has made clear in a number of cases about PCOs. This division will be all the more extreme if it goes to the substance of review, rather than its procedure.

We will have to wait and see. But let’s not hold our breath for action by central government. Anything which encourages challenges to government, and limits costs recovery by government, is not exactly going to be top of the pile for our cash-strapped rulers. If changes come at all, they will come from the more enlightened wing of judiciary which has shown itself susceptible to enforcing Aarhus principles.

Read more:

• 31 Aug Do foreign policy and human rights mix?
• More posts on environmental law
• European Commission warns the UK about unfair cost of challenging environmental decisions
• Campaigners welcome Aarhus ruling (Community Newswire)

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