My Lords, this group of amendments concerns environmental judicial review cases and relates principally to Clause 70.
Under the Aarhus convention—or, to give it its full title, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters—made in 1998 and ratified by the United Kingdom in 2005, the United Kingdom committed itself to ensuring that environmental litigation will be,
“fair, equitable, timely and not prohibitively expensive”.
Compliance with the convention is monitored by a compliance committee to which Governments and the public, whether individuals or corporate bodies, can complain of non-compliance with the convention provisions. By rules of court contained in the Civil Procedure Rules—at Rules 45.41-44—the courts in England and Wales have introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums: currently, £5,000
against an individual claimant, £10,000 against a claimant which is a business or other legal person, or £35,000 against a defendant. There are, I understand, similar provisions in Scotland.
There is a detailed but relatively simple and quick procedure under the rules for a defendant to challenge a claimant’s contention that a claim is indeed an Aarhus convention claim. Clause 70 is an attempt to enable the Lord Chancellor, by regulations, to comply with the Aarhus convention by providing for the costs-capping restrictions in Clauses 68 and 69, which we have just discussed, to be excluded,
“in relation to judicial review proceedings which, in the Lord Chancellor’s opinion, have as their subject an issue relating entirely or partly to the environment”.
I regret that, as an attempt to comply with the Aarhus convention, Clause 70 is, as drawn, inadequate in a number of respects. First, the clause is merely permissive and not mandatory. It states:
“The Lord Chancellor may by regulations provide”.
For so long as the Lord Chancellor fails to exercise his power to make regulations under the clause, it is self-evident that the United Kingdom will be in breach of the Aarhus convention by its restrictions on costs capping in applicable cases.
Secondly, the clause would apply only to exclude or restrict the application of Clauses 68 and 69, limiting costs capping or protective costs orders. For all the reasons given to this Committee in earlier debates, the effects of Clauses 65 and 66 would be to expose anyone lending financial support to judicial review proceedings to an application for the whole cost of the proceedings if they are unsuccessful, with what amounts to a presumption that such a costs order is likely to be made against any such supporter. It is completely clear that the effect of such clauses is to make such litigation prohibitively expensive within the meaning of the Aarhus convention.
Furthermore, as has been explained at length today, Clause 67, if enacted, would have the effect of exposing interveners to a costs order against them in any case in which they intervene, win or lose. It would prevent them from getting their costs, however good their case and however helpful their intervention, even from a thoroughly unmeritorious defendant, unless the court could find “exceptional circumstances”. I submit that it is clear beyond argument that those clauses would make environmental judicial review cases prohibitively expensive, just as devastatingly as the restrictions on costs capping to which Clause 70 is presently limited in its application.
The next problem with Clause 70 is that it refers only to environmental judicial review cases. The Aarhus convention itself is not so limited. The compliance committee found, as long ago as 2008, in a case concerned with odours emanating from the defendant’s waste site, that private nuisance claims relating to environmental matters were also cases to which the Aarhus convention applied. Indeed, only last week, in the case of Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012, the Court of Appeal ruled, in a judgment given by Lord Justice Elias with which Lord Justice Pitchford agreed, that the court did not,
“see why in an appropriate case a private nuisance claim should not be treated as one of the judicial procedures referred to in Article 9.3”,
of the Aarhus convention. In that case, a protective costs order was not made on its facts, but the principle was clearly established that private nuisance cases could fall within the Aarhus convention.
The Public Bill Office has taken the view that the Long Title of this Bill is insufficiently wide to encompass amendments that deal with the applicability of the Aarhus convention to proceedings that are not claims for judicial review. I therefore invite my noble friend the Minister—if he does not already have enough business with his sun cream and his red pen—to consider widening the Long Title to enable the Government to introduce or consider amendments on Report to address non-compliance by the United Kingdom with the provisions of the convention outside the scope of judicial review, in particular in private nuisance claims.
A further weakness of Clause 70 is in the definition of its applicability. It applies to claims which are,
“in the Lord Chancellor’s opinion”,
environmental claims. That test both fails to tie the applicability of the clause to the terms of the convention itself and leaves the definition of what is or is not a claim within the clause entirely to the opinion of the Lord Chancellor. I fail to see why that should be thought an appropriate way of drafting the clause, given that rules of court have already established, in CPR 45.41 and 45.44, both a satisfactory definition tied precisely to the convention, albeit limited to judicial review claims—which I dispute—and a quick and effective method of determining whether a claim lies within that definition. I add in parenthesis that it is quite unclear from Clause 70 whether the existing rules of court would survive—or, if not, what would happen to them.
The convention compliance committee made findings in 2010 that the United Kingdom was in breach of the convention by reason of the general principle in our courts that costs follow the event. It made those findings despite the UK Government’s submissions that the availability of legal aid, conditional fee agreements and protective costs orders, and the wide discretion given to judges on costs, limit the severity of the general principle that costs follow the event in its application.
Those findings by the compliance committee of course predated the restrictions on legal aid, which were limited in the way that was correctly described by my noble and learned friend Lord Mackay earlier today. They also predated the restrictions on the recoverability of success fees and ATE insurance premiums and, of course, the restrictions on protective costs orders that are proposed by this legislation in the two clauses that we have just considered. At the very least, to even approach compliance with the convention, it is necessary to introduce exceptions, in cases to which the convention applies, to the restriction on the availability of legal aid at the permission stage and to the restriction on the recoverability of success fees and ATE insurance premiums.
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Our Amendments 81A, 81C, 82C and 82D would address the issues I have mentioned as follows. Amendment 81A would make the provisions of Clause 69(1) subject to a revised Clause 70. Amendment 81C, via proposed new subsection (2), would exclude, in claims to which the convention applied, both the provisions in the Bill on financial information and interveners in Clauses 65 to 67, and the restrictions on the recovery of success fees and ATE insurance premiums, thus deleting the applicability of those clauses to Aarhus convention claims. Proposed new subsection (3) would require the court to make a costs capping order in convention cases, if the courts considered that the lack of such an order would indeed entail a breach of the convention. Proposed new subsections (4) and (5) would provide for new rules of court and for the courts to have regard to the reports of the compliance committee, which I suggest is an important feature.
Amendment 82C would introduce a definition of the convention and of an Aarhus convention claim which would be consistent with the existing rules but would widen the definition of such a claim to include cases within the convention that were not judicial review claims, as the Court of Appeal has suggested is right. It would also ensure, importantly, that any definition in court rules of the convention or a convention claim was consistent with the definition in the clause. Amendment 82D would add an exceptional case in respect of Aarhus convention judicial review claims to the legal aid exceptions in the LASPO Act. Those exceptions currently exist for cases which allege a breach of a claimant’s rights under the European Convention on Human Rights or a breach of an individual’s enforceable EU rights to the provision of legal services. So claims that were Aarhus convention claims would be added.
This is a complicated area, and the Aarhus convention and its applicability are complicated matters. However, I start from the position that it is essential to the rule of law and to international relations that the United Kingdom should both comply and be seen to comply with its international obligations, such as those under the Aarhus convention. I apologise to noble Lords for taking some time to introduce these amendments, but I commend them to the Committee and look forward to my noble friend’s response. I beg to move.