My Lords, Clause 76 allows for judicial review claims on issues which relate entirely or partly to the environment to be excluded from the revised costs capping regime established by Clauses 74 and 75. This is to ensure continuing compliance with our obligations under the Aarhus convention and the various European directives which implement it. The requirements include that relevant procedures must not be prohibitively expensive. This is relevant to judicial reviews in certain environmental cases. Consequently, Clause 76 allows for environmental judicial reviews to be excluded from the approach in Clauses 74 and 75.
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I set out the Government’s arguments at some length in Committee, so I hope that the House will forgive me if I am brief. We say that the approach taken under Clause 76 provides sufficient flexibility to meet relevant future changes in the international legal landscape. Under the present law, costs capping orders in these types of cases in England and Wales are governed by a separate regime, set out in the Civil Procedure Rules. It applies a fixed costs framework where, if a judicial review falls within the scope of the convention, the liability of the claimant to pay the defendant’s costs is automatically capped at particular levels.
Amendment 174A would seek to exclude convention claims from the provisions in Clauses 71 to 73 and introduce a new requirement for making costs capping orders in these types of cases separate from the existing regime in the Civil Procedure Rules. The Government are not persuaded that as a matter of law there is a requirement to exclude environmental cases from Clauses 71 to 73 of the Bill, nor that there would be merit in allowing for the potential abuse they seek to rectify to continue in environmental cases. The Government continue to consider it unnecessary to introduce a new requirement for making costs capping orders in these types of cases and are satisfied that it is appropriate for the procedures governing costs capping in convention claims to be set out in the Civil Procedure Rules.
Amendment 174B would seek to define what would fall within the definition of an Aarhus convention claim. In the Government’s view, which I also set out in Committee, the definition in Amendment 174B goes well beyond the current approach and the requirements which that approach is intended to satisfy. In particular, we would still not 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 including additional cases within this definition. If the definition is too broad, we risk gold-plating our requirements. This would also risk encouraging claimants to characterise their claims as being “environmental”, generating satellite litigation and assisting, for example, those bringing weak claims to shelter from their proper costs liability.
The intention behind Clause 76 and the regulations that will be made under it is to exclude relevant environmental cases from the codified regime created by Clauses 74 and 75 and to allow these cases to continue to be dealt with under the separate regime in the Civil Procedure Rules, ensuring compliance with the relevant international obligations. The new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental cases and ensuring that judicial review is not misused. On that basis, having listened carefully to the arguments advanced by the noble and learned Lord—I am sorry, my noble friend Lord Marks—I ask him to withdraw the amendment and agree to Clause 76 standing part of the Bill.