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Welcome back to the Aarhus blog: proud to be ‘Search Result Number One’ following any Google Search for “Aarhus Blog” – note we are not complacent, however, and closely monitor the ongoing threat to our pre-eminence posed by Lonely Planet and Danny In the North’s Travel Blog.
Today we consider another startling threat: recent reports that the government is considering pulling out of the Aarhus Convention.
As readers of this blog will no doubt be aware, 28 September is the International Day of Access to Information: my fourth favourite holiday after Halloween, Christmas and Lost Sock Memorial Day. Like many of you, I spent this special day in quiet contemplation of the benefits of timely access to environmental information. Some members of the government, however, reportedly spent the day discussing plans for the UK to leave the Aarhus Convention in a new planning bill, currently being worked on by Lord Banner KC (of the previous Banner Review).
The problem appears to be the government’s desire to remove the Aarhus costs cap from infrastructure judicial reviews, in order to restrict the number of legal challenges to infrastructure projects. Lord Banner previously advised the government, quite rightly, that “For so long as the UK remains a member of the Aarhus convention, there is no case for amending the rules in relation to cost caps in order to reduce the number of challenges to nationally significant infrastructure projects.” The obvious solution to this puzzle, it seems, is not to find other ways to speed up infrastructure development, but to pull out of yet more international obligations (or “Aarhxit” as my colleague James Maurici KC puts it).
It is easy to forget that the UK’s “winner-takes-it-all” adverse costs regime is by no means the international standard. Cost-neutral jurisdictions include, for example, that notorious hotbed of eco-zealotry, the United States of America. That means that in the UK, unlike many other jurisdictions, bringing even a solid environmental challenge is quite a risky business without any cost cap in place.
Assuming, for the sake of argument, that access to environmental justice is a good thing (bear with me now), if a country’s default costs rules have the potential to bankrupt an environmental litigant, one might expect those rules to be restricted in environmental cases. That is even more so when that country has signed up to an internation obligation not to make access to environmental justice prohibitively expensive (Article 9(4) of the Aarhus Convention).
In order to comply with Article 9(4), the UK caps adverse costs liability in environmental judicial reviews to £5,000 for individuals and £10,000 for organisations. Removing the cap altogether would have stark consequences. Many, many environmental decisions that have been found to have been unlawful by the Courts in the past would have gone unchallenged without the Aarhus cap- and one could expect future unlawful decisions similarly to go unchallenged, simply because claimants can’t afford the risk.
The difficulty with the government’s asserted problem of meritless legal challenges is that claims which are totally without merit get shut down pretty quickly by the Planning Court at the permission stage (quicker in the case of an infrastructure challenge, which will always be labelled a Significant Planning Case). If a challenge passes that hurdle and makes it all the way to, say, to the Court of Appeal, one might think the claimant had a pretty decent argument to begin with and should have been entitled to pursue it. If a DCO applicant is confident that various senior judges were wrong about that, they can of course start building anyway.
Rather than try to reduce the number of legal challenges (and personal views only here), the government could seek to speed up how challenges are dealt with. The Planning Court is already pretty quick, but it could always do with more judges. The Court of Appeal can be very slow, which is often the bottleneck for infrastructure challenges- so why not resource it better, and implement a fast track for planning appeals? As the government is very keen to monetise delay when it comes to infrastructure projects, the £££ savings gained by adding resource to the Court of Appeal would mean that this investment would pay for itself many times over.
There are also other tweaks to the costs rules that could be proposed without the UK arguably being in breach of the Convention- but given the rules are pretty hard on claimants anyway, with statements of resources being required and the prospect of applications to vary the cap, that really isn’t really necessary. Plus any tweak that doesn’t make environmental litigation prohibitively expensive presumably wouldn’t make a serious dent in the number of cases brought.
As a final thought, I can’t help but wonder- after attacks on the EU Treaties, the ECHR, and now the Aarhus Convention- what is next on the anti-multilateralist-list? The pesky UN Convention on the Rights of the Child? The UN Charter itself? Is Britain to be the first international Freeman on the Land? The last few years has all been a bit much for those of us who are keen on the idea of global cooperation and the global rule of law. Not to worry, though- I have a good feeling about next year!
Until next time, readers!
PS if anyone knows of any job openings next year that don’t involve bringing Aarhus-capped legal challenges, please do drop me a DM.
This blog post was written by Alex Shattock.
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Authors of the Aarhus blogs
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.
– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.
– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).
– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.
