Judicial Politicization and the Aarhus Convention : UK Perspectives

1. Judicial Politicization and the Aarhus Convention : UK Perspectives Richard Macrory University College London 3rd Meeting of Task Force on Access to Justice Geneva October 14 2009

2. Context • Art 9.4 on access to justice provides key context • Most focus to date on judicial review in UK and whether Aarhus compliant • Many of principles could be applicable to other fields of judicial review but Aarhus an international and European Community obligation

3. Aarhus 9.4 • Discretion as to standing for JR in UK Courts “sufficient interest” test, but liberal approach over last 20 years. • Procedures for access to justice must “fair, equitable, timely and not prohibitively expensive” “fair and equitable”. Little robust analysis on meaning but probably meets. “timely” and “prohibitively expensive” core issues

4. Costs in the Cause • General principle in both private and public law that losers pays all legal costs including that of winning side • Sometimes, judge refuses winning side (government) its costs against an NGO as mark of disapproval or recognition that it was in public interest to bring case. But only at end of case.

5. Pre-emptive Costs Orders • Costs orders after the event don’t reduce risk of litigation • Pre-emptive costs orders - fixing in advance max costs either side may bear developed in late 1990s by judges. • Cases must involve public interest and courts treated them as exceptional.

6. KEY UK JUDICIAL PLAYERS

7. Judicial acknowledgement of Aarhus • Formally still a dualist approach to international law but national judges increasingly aware of Aarhus • R (Burkett) v Hammersmith & Fulham (2004) Court of Appeal (Lord Justices Brooke & Carnwath) - first mention of Aarhus in Post-Script to judgment

8. Burkett 2004 • “If the figures revealed by this case were in any sense typical of the costs reasonably incurred in litigating such cases up to the highest level, very serious questions would be raised as to the possibility of ever living up to the Aarhus ideals within our present legal system. And if these costs were upheld on detailed assessment, the outcome would cast serious doubts on the cost-effectiveness of the courts as a means of resolving environmental disputes.”

9. 2006 Environmental Law Foundation Lecture - Lord Justice Brooke • The 1998 Aarhus Convention should have changed things more than it has • There must be room for argument that the courts are entitled to take the existence of this international obligation into account when exercising their discretion as to costs orders

10. Lord Justice Carnwath • 2001 Court of Appeal • 2004 Senior President of Tribunals responsible for reforming tribunal system • 2004 Founding member and Secretary General European Union Forum for Judges for the Environment • 2007 Hon President UK Environmental Law Association

11. Carnwath 1999 Lecture to Bar European Group Environmental Litigation - A Way Through the Maze? • Refers to Aarhus Convention and access to justice provisions • “Litigation through the Courts is prohibitively expensive for most people unless they are poor enough to qualify for legal aid or rich enough to be able to undertake an open-ended commitment on expenditure running to tens or hundreds of thousands of pounds”

12. Sullivan Report on Access to Environmental Justice 2008 • Chaired by Mr Justice Sullivan as he then was • (promoted to Court of Appeal 2009) • Unofficial committee initiated by Lord Justice Carnwath • Members served in individual capacity

13. Sullivan Report • Wide range of expertise and approaches: In house lawyer for large environmental NGO Head of Legal Services, Environment Agency Head of Funding Policy, Legal Services Commission City firm solicitor often representing developers Barrister often acting for NGO claimants Solicitor often acting for NGO claimants including Cornerhouse Academic environmental lawyer

14. Sullivan Report • Unanimous conclusions and recommendations • Report mainly aimed at judiciary, court officials, and government • Focus on Aarhus and Judicial Review

15. What does ‘prohibitively expensive refer to? • Narrow view is that only refers to court fees • Working Party considers this is unduly restrictive view - it refers to the total costs associated with bringing a claim in question, including the risks of exposure to costs should the claim fail

16. Implications of Aarhus • Aarhus does not entitle members of the public to bring manifestly bad claims. Requirement of JR permission still important. • Art 3.8 entitles courts to award reasonable costs but what is reasonable is to be judged in the light of overall requirement that procedures not prohibitively expensive • Costs would be prohibitively expensive if, whether actual or risked, would reasonably prevent an ‘ordinary’ member of the public from embarking on an Aarhus challenge • These requirements equally apply to interim applications such as injunctive relief

17. Loser Pays Principle • Don’t recommend abolishing completely in Aarhus cases • Useful discipline against frivolous claims, and ensures full engagement • But potential liability must not make procedures overall prohibitively expensive

18. Aarhus Protective Costs Orders • Cornerhouse constraints inconsistent with Aarhus • We favour bespoke Aarhus PCO • If JR permission granted for a case falling within Aarhus, and claimant acting reasonably would be prohibited from bringing case by level of costs risks, then court must make some form of PCO - no private interest/public importance tests not applicable

19. Interim Injunctions • Significance of interim remedies to preserve environment before trial important element of Aarhus • Normal practice to require undertakings, especially in favour of third party developers, significant deterrent • Timeliness in hearing full trial critical for fairness • Courts should not require cross-undertakings where injunction would prevent significant environmental damage • But then incumbent on court and administration to ensure full case heard promptly

20. Case management • Room for improvement which will assist all parties • Early disclosure of information, and guidance need from court as to the sort of information required from all parties • Report contains suggested framework for core information requirements • Early consideration of costs and other other matters to ensure that Aarhus compliant - at Judicial Review permission stage at the latest. Should be handled by judge with expertise in environmental cases.

21. Impact of Aarhus reforms on case load • Difficult to quantify precise number of current environmental JRs (2007 155 including 112 Land Use Planning Planning) • There would be an increase but no evidence of floodgates - litigation still resource intensive and matter of last resort • Permission stage likely to be rather more rigorous, especially if recommendations of improved information followed.

22. Implementation of Working Party recommendations • Nearly all recommendations could be implemented by consistent exercise of judicial discretion under existing powers • Working Party recommend eventual incorporation into Court Practice Rules but would prefer trial in practice beforehand before setting in stone • European Commission (and ECJ) unlikely to be satisfied with wholesale reliance on judicial discretion given that individual rights involved. A practice direction at the very least is likely to be required.

23. Financial implications of Aarhus • Compliance with Aarhus will inevitably impose some extra costs on both public authorities and third parties involved in environmental judicial reviews • That has to be set against goal of improved environmental protection that underlies Aarhus principles on access to justice

24. Fundamental Review of Civil Costs announced November 2008 by judicial head of civil courts. • Supported by Ministry of Justice Independent review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost. • Compare costs regimes in other countries • Includes Case Management Issues • Final Report December 2009

25. Review chaired by Lord Justice Jackson Interim Report May 2009 • Aarhus explicitly addressed • Possibly cost shifting (each side bears own costs) or extended Protective Costs Order • “It must be recognised that unless there are radical reforms along the lines suggested above, it is possible that England and Wales are in breach of their obligations under the Aarhus Convention” • Accepts that these principles may shift to all JR claims

26. Hinton Organics Case March 2009 Court of Appeal (Carnwath LJ) • Not "prohibitively expensive" applies to the total potential liability of claimants, including the threat of adverse costs orders. • The Jackson review provides an opportunity for considering the Aarhus principles. Not appropriate to do it now by this court. • Apart from the issues of costs, the Convention requires remedies to be "adequate and effective" and "fair, equitable, timely". The variety and lack of coherence of jurisdictional routes may arguably be seen as additional obstacles in the way of achieving these objectives.

27. ENVIRONMENTAL TRIBUNALS – ANOTHER VISION • Most debate concerns Judicial Review in High Court • But 2007 reform of Tribunals allows any class of JR’s or any individual one to be transferred to tribunal • Clean slate on costs rules and procedures in tribunals