Out-Law News 3 min. read
19 Sep 2013, 11:40 am
Litigation expert Craig Connal of Pinsent Masons, the law firm behind Out-Law.com, said that although the consultation might seem like a "dull and routine exercise", it came at an interesting time in the debate over public participation and access to justice in environmental matters.
"The consultation comes at a time when the Government is making a determined effort to reduce challenges to projects - and for that matter in Government policies - in the interests of economic development," he said. "The participation obligations in the Aarhus Convention drive in a very different direction, giving rise to inevitable tension."
The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), implemented in the EU by the Public Participation Directive, requires public bodies to ensure that the public have access to a procedure to challenge decisions relating to the environment to the extent permitted by national law. Amongst other things, the Convention specifies that this procedure should not be "prohibitively expensive".
The UK is required to produce an NIR once every three years. It sets out the procedures and mechanisms in place to enable use of the Convention in the UK, and provides examples of the practical steps being taken to implement its requirements.
Publication of the draft report comes shortly after the Government announced further proposed reforms to the judicial review process, which it said was intended to prevent those that do not have a direct interest in cases from exploiting the process for "campaigning or publicity purposes". The UK's approach to implementation of the Aarhus Convention has also recently been criticised by an adviser to the Court of Justice of the European Union (CJEU), who last week indicated that current civil court procedures in relation to costs in environmental cases were not compliant with the Convention.
The draft report highlights several changes and new initiatives that have taken place in the UK since the last NIR was submitted at the end of 2010. Among these are the publication and adoption of the new Consultation Principles for Government in 2012, which encourage earlier and sustained stakeholder development and a 'digital by default' consultation process; and the new online suite of National Planning Practice Guidance, which is currently being beta-tested by the Department for Communities and Local Government (DCLG).
Perhaps the most significant change outlined in the NIR is the new regime for Protective Cost Orders (PCOs) in environmental judicial review claims, introduced in England and Wales last year; and the similar new regime for protective expenses orders introduced in Scotland in March. Under these reforms, courts are able to cap costs before deciding whether to proceed with a challenge from the public to a Government project on environmental grounds, providing that the claims fall clearly within the scope of the Aarhus Convention.
Simon Colvin, litigation and environmental law expert at Pinsent Masons, said that the consultation came at an "interesting point in the UK's ongoing Aarhus implementation saga".
"Advocate General Kokott indicated that the requirements for reciprocal caps in respect of a claimant's costs, and the need for binding undertakings as to damages where interim relief is sought, are not Aarhus compliant," said Colvin, summarising the opinion.
"The constant 'horse-trading' between the EU and the UK in relation to Aarhus, most of which is played out via the CJEU, is simply resulting in widespread uncertainty and lengthy referrals," he said. "What's the answer? The UK does not want to concede too much, as there is no political appetite for such a move. It seems we are set to continue on the same path for now: an option which allows the UK Government to blame 'bureaucrats in Brussels'."
In England and Wales, costs are subject to fixed caps of £5,000 for individuals and £10,000 for organisations, with the public body's liability for the applicant's costs capped at £35,000. Similar caps apply in Scotland, although courts in Scotland can alter the caps if the applicant can show "cause" why it should do so. However it is these 'reciprocal' cost caps, albeit under the previous costs regime, which were criticised last week by the Advocate General to the CJEU.
As part of the Government's most recent proposals in relation to the reform of judicial review, it is considering whether to change the test for 'standing'. Current rules require that the party bringing judicial review has a "sufficient interest" in the matter in order to be entitled to bring a claim, which has been interpreted by courts as including cases where it is in the public interest for an issue to be examined. Although the Government considers that this test is being interpreted too broadly in cases of 'ordinary' judicial review, a wider test is necessary in Aarhus Convention cases and it is not proposing to modify it in these cases, according to the NIR.
