A new report considers the impact of the current costs rules on access to environmental justice in the UK. A pillar of justice II (RSPB/Environmental Law Foundation (ELF)/Friends of the Earth, edited by Stephen Tromans KC, June 2023) analyses Ministry of Justice (MoJ) data on environmental claims alongside ELF case studies in considering whether the current costs rules for environmental cases enable, hinder or even prevent the UK from meeting its Aarhus Convention obligations. It follows an earlier report, A pillar of justice: the impact of legislative reform on access to justice in England and Wales under the Aarhus Convention (Friends of the Earth/RSPB, 1 November 2019) (POJ I).

The UK signed the Aarhus Convention (the UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) in 1998 and ratified it in 2005. It links human rights and environmental protection in binding international law for the first time, and implements the procedural rights and requirements of Principle 10 of the 1992 UN Rio Declaration on Environment and Development.

The convention states: ‘In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters’ (article 1). These are the three pillars of the convention.

Article 9(4) requires the provision of ‘adequate and effective remedies’, which must be 'fair, equitable, timely and not prohibitively expensive’. One of the most important legal processes for the UK public to uphold the Aarhus Convention pillars is judicial review (JR). JR represents almost the primary legal route to challenge environmental decision-making by public authorities. As such, it is vital that it operates effectively.

Various aspects of the UK’s implementation of the convention continue to be the subject of communications by NGOs and members of the public to the Aarhus Convention Compliance Committee, in particular the aspect of prohibitive expense. In response, the government introduced the environmental costs protection regime (ECPR) into Civil Procedure Rules 1998 (CPR) Part 45 in 2013, and there have been various alterations to the ECPR since then. However, concerns continue to be raised.

At the seventh session of the Meeting of the Parties to the Aarhus Convention (18–21 October 2021), the UK was requested to submit a plan of action to the compliance committee outlining how it intended to bring itself into compliance with article 9(4). Despite persistent efforts from NGOs and others, there was no substantive governmental engagement with stakeholders prior to publication of the Plan of action for decision VII/8s (United Kingdom) on 1 July 2022, which contained no tangible proposals. It simply stated the government would consider whether it is appropriate to amend the ECPR, which in itself is not new as it had indicated the possibility of a review in 2018. At the 77th meeting of the compliance committee (13–16 December 2022), it indicated that the UK plan would need to get ‘sharper-edged and more specific’ before the deadline for compliance on 1 October 2024.

A pillar of justice II analyses, to the extent possible, the impact of the ECPR and other legislative changes on access to environmental justice in England and Wales. As the MoJ has yet to introduce a transparent and consistent system for identifying the number of environmental JR claims (‘Aarhus Convention claims’ for the purposes of the CPR), this presented the authors of the report with a challenging task. Nonetheless, it gives an informed evaluation of the current picture and makes a number of recommendations.

The report reviews data obtained from the MoJ on environmental claims between 15 May 2019 and 31 July 2022 alongside published MoJ statistics and data from POJ I. It highlights a continuing fall in the number of Aarhus Convention claims and expresses the hope that a review of the ECPR might shed light on this decline. In the interim, it appears that legislative changes introduced since 2013 intended to dissuade JR applications are having that effect on environmental claims, with the number of claims during the period analysed less than half that during the period covered by POJ I. However, the data does demonstrate a modest increase in success rates for those environmental claims that are issued, fluctuating around 10 per cent. This compares well with the figure for total JR applications, which is around three per cent.

The chilling effect of the rule changes is demonstrated by the ELF case studies in the report. These highlight that in nearly 44 per cent of those cases given a positive opinion on chances of success, clients were unwilling or unable to take on the risk of an adverse costs order even with the potential benefit of an Aarhus costs cap limiting their exposure to costs in the event of their losing the case (£5,000 for individuals and £10,000 otherwise).

The report recommends bringing all environmental claims (civil and private) within the ECPR and removing the reciprocal cap (whereby a claimant’s costs are limited to £35,000 in the event of them winning) as there is no basis for this in the Aarhus Convention. As such, it can mean some cases are too expensive to win. The report expresses the hope that these, along with its other recommendations, are taken account of in the forthcoming review of the ECPR.