Aarhus breaches all round?

13 April 2011 by

On 6 April 2011, the European Commission announced that it has decided to refer the UK Government to the Court of Justice of the European Communities under Article 258 TFEU, for failing to provide affordable access to justice in environmental cases.

This blog has previously charted some of the twists and turns in the process of showing that environmental challenges are currently “prohibitively expensive” within the meaning of Article 9(4) of the Aarhus Convention – not the least of which was a complaint to the Aarhus Compliance Committee which was upheld by that Committee in October 2010. And the underlying concern is the state of the costs rules under which a claimant may be ordered to pay tens of thousands of pounds of costs if he loses, despite the developing case law on Protective Costs Orders designed to mitigate this.

The decision to commence infraction proceedings before the CJEU arises out of a complaint made by the Coalition for Access to Justice for the Environment, a group of environmental NGOs, as long ago as 2005. The wheels of that process have not exactly run fast, and the UK can hardly complain that it does not know what is coming. The Commission sent the UK a letter of formal notice in respect of the complaint in December 2007 and issued the UK with a Reasoned Opinion on 18 March 2010.
So, you might think, we all now know exactly why the Commission considers that the UK is non-compliant, and we can therefore analyse those claims before we get judgment, and indeed inform our domestic courts precisely what issues are to be before the CJEU.

Er, no.

In line with current Commission practice, neither the Commission’s letter of formal notice or the Reasoned Opinion is publicly available – an oddity, if not a considerable irony, given that the EU itself is signed up to Aarhus and its rights to environmental information. It implements what it conceives to be its Aarhus obligations via its own Regulation 1049/2001 applicable to EU institutions.  Some member states volunteer these potentially embarrassing documents (these include, no surprises, Netherlands, Sweden and Denmark, and exclude, equally no surprises, the UK). The Commission refuses to disclose either letter of formal notice or reasoned opinion, apparently on the grounds that such information amounts to documents concerning “inspections, investigations and audits” under Article 4(2) of Regulation 1049/2001, and it appears unwilling to accept that an overriding public interest lies in the disclosure of these documents under the same provision.

So the procedure will wend its way through the CJEU without the rest of us knowing precisely what it is all about until we get to the stage of the Advocate-General’s opinion. Only then, it appears, can the rest of us be trusted with this information.

You will look in vain for anything addressing the costs difficulties posed by Aarhus in the Ministry of Justice’s response of 29 March 2011 to consultation on the Jackson report  – all we are told is that Qualified One-way Cost Shifting (i.e. abating the ordinary costs rules in favour of claimants) is not to be extended to cases other than personal injury and clinical negligence. The Aarhus argument commands 3 lines (para.176) – with no governmental response.  Pity – because if ever there was an opportunity to amend the costs regime in environmental cases, it is at the moment, as part of the wide-ranging reforms which the MoJ is otherwise supporting. After all, it is not as if the problem is miraculously going away. The Aarhus Compliance Committee has declared the UK to be in breach. The CJEU is going to be hearing infraction proceedings, and it also will be considering the Article 267 reference from the Supreme Court in Edwards on what prohibitive expense means – is it subjective (this claimant) or objective (ordinary claimants)?  So, sooner or later, something will have to be done – setting the domestic courts a host of questions in the meanwhile.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;

  1. No offence to the European Commission but there are far more important issues about which the UK government should be taken to task.

    Never mind there being a lack of affordable justice in environmental cases; there is a complete lack of justice in cases where POCA (Proceeds of Crime Act) is used. If a restraint order is granted to “maintain assets” it is like opening the flood gates for management receivers to be let loose, wipe out those assets, seize and liquidate assets (even without the appropriate orders) and leave a huge bill that must be satisfied even if the original allegations that imposed the restraint are found to be false and the so-called defendant is innocent.

    While this destruction is being carried out there will be no access to any money to fight the injustice and so the complete and utter implosion of lives, families and businesses is encouraged and there is not a thing that apparently can be done to challenge this obscene legislation.

    Any assumption of innocence is swept away, any adherence to human rights is stamped on completely and utterly – this legislation should be put under the microscope and the European Commission needs to take action against the UK government for allowing such legislation to be exacted in the first place.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: