My Lords, I am grateful to both noble Lords—my noble friend Lord Marks and the noble Lord, Lord Beecham—for their contributions to this debate. Clause 70 enables provision to be made to exclude judicial reviews about issues which relate entirely or partly to the environment from the revised costs capping regime established in Clauses 68 and 69, which we debated in the previous group. Clause 70 is to reflect our obligations under the Aarhus convention and the various European directives which implement it, which set out requirements for access to justice concerning environmental matters. This includes a stipulation that such procedures must be,
“fair, equitable, timely and not prohibitively expensive”.
This is relevant to judicial reviews in certain environmental cases. Allowing for such environmental cases to be excluded from the costs capping regime in Clauses 68 and 69 allows the Secretary of State enough flexibility to meet future changes in the international landscape. A separate regime has already been established in the Civil Procedure Rules to govern costs capping orders in such cases in England and Wales. It applies a fixed costs framework under which, in a claim raising issues that fall under the Aarhus convention, the liability of the claimant to pay the defendant’s costs is automatically capped at certain levels. This regime is simple to operate and understand.
Amendments 81C and 82B would seek to exclude certain types of judicial review from the provisions in Clauses 64 to 69. Those claims might be considered very broadly as “environmental”. Amendment 81C defines those cases that are excluded by reference to the Aarhus convention and introduces a requirement that, provided certain conditions are met, costs capping orders should be made in these cases.
Amendment 81C also aims to restore the full recoverable success fee and after-the-event insurance premium structure that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed, implementing the Jackson reforms to reduce excessive costs in civil litigation. Amendment 82C would seek to define what would fall within the definition of an Aarhus convention claim. Amendment 81A is contingent on Amendment 81C. Its effect is to make Clause 69 subject to the changes to Clause 70, which I have already discussed.
Attempting to define these claims in statute risks either being too generous and gold-plating the Aarhus requirements, or alternatively being too restrictive and missing out claims which should be caught by the Aarhus regime. The definition as set out in the proposed new clause is very broad, and appears to err on the side of gold-plating. In particular, we would not necessarily accept that all private law claims falling within the new clause should come under the term “Aarhus Convention claim”.
The Government see no reason for excluding additional cases, particularly such a broad range of cases as would be covered by these amendments. Too broad a
definition would create an incentive for claimants to characterise their claims as “environmental”, generating satellite litigation and assisting, for example, those bringing weak claims to shelter from their proper costs liability. In the Government’s view Clause 70, which allows for the exclusion of certain environmental judicial reviews from the new protective costs order regime which Clauses 68 and 69 will establish, is sufficient to ensure compliance with our obligations under the Aarhus convention and the directives which implement it. The proposed new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental and other matters and ensuring that judicial review is not misused.
I turn now to Amendment 82D. The new clause seeks to amend Section 10 of the LASPO Act, which makes provision about exceptional case determinations for individuals, and Schedule 3 to that Act, which makes provision about exceptional case determinations for legal persons, so that Section 10 and Schedule 3 would both refer explicitly to claims for judicial review related to the Aarhus convention. The Government do not believe that such an inclusion is necessary. First, funding would already be available to bring a judicial review with a potential benefit to the environment, subject to the merits and means test. This is in the scope of the general civil legal aid scheme by virtue of paragraph 19 of Part 1 of Schedule 1 to LASPO. Section 10 of LASPO provides for exceptional funding in cases that are outside the general scope of civil legal aid. Secondly, along with the provisions of the Aarhus convention, this amendment is concerned with reflecting EU directives. The current provisions under Section 10 and Schedule 3 already provide for legal aid to be granted where it is necessary to make the services available to the individual or legal person because failure to do so would be a breach of the individual or the person’s enforceable EU rights.
The noble Lord, Lord Marks, referred to reviewing the CPR. The Government have committed to reviewing the costs regime for environmental cases when the European Court of Justice handed down its judgment in the Commission v the United Kingdom case. Following that judgment in February this year, and recent case law, we are reviewing the current costs regime. As part of that review, we will consider whether the current costs regime for Aarhus claims should make provision for statutory review proceedings dealing with environmental matters, look at what scope there is to amend the current cap—which is currently £5,000 for individuals and £10,000 for businesses—and consider the principles determining what level of costs in a particular case would be prohibitively expensive, as set out in Edwards v Environment Agency and reiterated by the European Court of Justice in its various infraction judgments, and whether they could be included in the costs regime.
The Government do not accept that all private nuisance claims are caught by the convention requirements. They tend to focus on enabling those with interests in land to protect their private property rights rather than enabling members of public to challenge environmentally deleterious acts. However, on the occasions where a private nuisance claim relates to actions which do not merely harm the claimant’s
private property rights but contravene provisions of national law relating to the environment, there are judicial and administrative procedures which my be relied upon by members of the public.
The Aarhus convention protects the right of environmental NGOs to bring judicial proceedings. It is not necessary to intervene in existing cases, so Clause 67 does not put the UK in breach. As to reviewing the application of LASPO to this area, I recall that during the debate when the LASPO Bill was going through Parliament there was an attempt to carve out an exception for cases of this sort. As the noble Lord, Lord Marks, and the Committee will have heard me say, the Government are committed to reviewing the effect of the LASPO provisions, but it is far too early to do so in this particular context. The review will take place within five years—perhaps sooner than five years, but certainly not much sooner—so as to allow a full review of the effect, bearing in mind in particular that there was a large spike in cases before April 2013, the cut-off date, which may make it very difficult to analyse satisfactorily the effect of LASPO.
Of course, I will reflect carefully on the observations of my noble friend Lord Marks and the noble Lord, Lord Beecham, but I gratefully decline my noble friend’s invitation to amend the Long Title of the Bill as currently advised. It is our view that these provisions are sufficient to ensure compliance with our obligations under the convention and the EU directives. I therefore respectfully invite the noble Lord to withdraw his amendment.