Landmark Chambers

Home > Resources > Environmental Law Blog

Environmental Law Blog

MoJ’s Judicial Review Proposals for further reform and Aarhus

The MoJ’s most recent consultation paper on further reforms to judicial review includes proposals to restrict the standing test in judicial review and to look again at PCOs. However, in relation to environmental cases within the scope of the Aarhus Convention the Government has recognised the limitations on its actions.
Thus in relation to standing:

“73. The approach to standing in the courts in England and Wales is subject to requirements in EU law which incorporate the Aarhus Convention33 regarding access to justice in environmental matters. This gives members of the “public concerned” and certain non-governmental organisations access to procedure to challenge environmental matters (subject to requirements of national law). The current interpretation of “sufficient interest” as including those with a public interest provides a more generous approach than is required by Aarhus.
...
74. [Referring to the decision in R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370, [2003] JPL 431 at 132.] ... The Court of Appeal was explicit in setting out the principle of sufficient interest where a person “who, whilst legitimately and perhaps passionately interested in obtaining the relief sought, relies as grounds for seeking that relief on matters in which he has no personal interest” in contrast to a person who has no interest in the outcome.
81. The Government accepts that the requirements of EU law and the Aarhus Convention would mean that cases which raised environmental issues would need to be approached differently. NGOs which campaign for environmental protection are guaranteed rights of standing under the Convention and EU law, even if they are not directly affected. This would not extend to NGOs which do not campaign on environmental matters or which do not have environmental protection as an objective. Certain individuals are also required to have standing on environmental matters where they may not be directly affected. But that might be limited to where the individual can demonstrate that they have both a genuine interest in the environmental matter at issue and that they have sufficient knowledge to be able act on behalf of the public interest.39 This could be demonstrated by, for example, membership of a society, participation in an activity, experience of working in a particular field or suitable academic qualifications. This approach reflects the general principle that those bringing a judicial review should have a strong interest in the outcome.”

The questions posed are:

“Questions
Question 9: Is there, in your view, a problem with cases being brought where the claimant has little or no direct interest in the matter? Do you have any examples?
Question 10: If the Government were to legislate to amend the test for standing, would any of the existing alternatives provide a reasonable basis? Should the Government consider other options?
Question 11: Are there any other issues, such as the rules on interveners, the Government should consider in seeking to address the problem of judicial review being used as a campaigning tool?”

And on PCOs

“156. In non environmental cases the use of PCOs is not governed by the Civil Procedure Rules. A different costs protection regime (which sets out fixed costs caps) applies in relation to judicial review cases concerning environmental matters within the scope of the Aarhus Convention and is set out in the Civil Procedure Rules. In these cases a claimant’s costs are capped at £5,000 where the claimant is an individual and at £10,000 in other cases, and £35,000 for the defendant. In relation to PCOs in environmental cases under the Aarhus Convention, the UK is currently awaiting the outcome of proceedings before the European Court of Justice. The Government does not propose to make changes to that regime ahead of the outcome of those proceedings, but considers it right to look at the use of PCOs in non-environmental cases.”

The consultation is at: https://consult.justice.gov.uk/digital-communications/judicial-review-reform and responses are required by 1 November 2013.