Vital role of Judicial Review in Environmental Cases
Guest blogger Carol Day is a solicitor and environmental campaigner. She runs the Environmental Planning and Litigation Service (EPLS) at Leigh Day and is a Legal Consultant for the RSPB. She prepared Wildlife and Countryside Link’s response to the recent Government consultation on the provision and use of financial information as part of her role with the RSPB.
Government data confirms vital role of Judicial Review in environmental cases
Judicial review and the One Nation justice strategy
In his One Nation justice strategy, the Lord Chancellor Michael Gove clarified that the thing he will defend, above all else, is the rule of law. Without it, Mr Gove maintains, power can be abused. In this context, Judicial review is “an essential foundation of the rule of law, ensuring that what may be unlawful administration can be challenged, potentially found wanting and where necessary be remedied by the courts”.
It is therefore a paradox that this Government is (like the last) continuing to systematically dismantle the process of Judicial Review (JR) — the last and very often only mechanism civil society has for holding public bodies to account. Whether it is staving off (for how long?) a third terminal at Heathrow or overturning the Government’s decision to cull up to a fifth of Lesser Black Backed Gull population on the Ribble Estuary — the ability to challenge public bodies in court has always played a crucial role in an effective democracy.
The attack on Judicial Review
In a recent consultation paper, a fresh faced and smiling Michael Gove diverts his attention away from the process of JR (undermined in numerous ways over the last five years*) to undermine perhaps the most undeserving group of all — charities. Despite the lack of any evidential basis, the Government believes that JR is being “misused” by claimants, including environmental NGOs intent on grinding the UK’s economic recovery to a halt. Earlier this year, the Government passed the Criminal Justice and Courts Act 2015 to make JR (amongst other things) more challenging. The Act requires applicants to provide information on the funding of JR applications where either a third party has provided a charity with funding in excess of £1,500 towards the costs of litigation or a charitable company is relying on donations and/or grants to cover the costs of progressing a JR. In the latter case, the charity is required to provide the names and addresses of its members, as well as their interest in the JR. In both of these circumstances, the judge is then obliged to consider making a costs order against third parties in unsuccessful proceedings.
The aim of the proposals is clear. The Government will make it as difficult as possible for individuals and communities to hold public bodies to account and if removing the life-blood of charities is a consequence of doing that, then so be it.
What the data says
However, data obtained from the Ministry of Justice between April 2013 and March 2015 reveals a very different picture to that painted by the Government. Those concerned about the environment are not litigating voraciously or vexatiously. Firstly, environmental cases represent a tiny (0.007%) percentage of the total number of JRs lodged on an annual basis (136 of some 20,000). Secondly, between 2013 and 2015, nearly half (an average of 48%) of environmental cases were granted permission to proceed (i.e. were deemed at least arguable by a judge). This contrasts with a figure of 16% for all cases in 2014 and 7% in the first quarter of 2015. Thirdly, in that same period, on average, 24% of environmental cases were successful for the claimant — compared with a success rate of 2% for all cases in 2014. The fact that the public body was found to have acted unlawfully in nearly one quarter of the cases challenged demonstrates that environmental cases play an essential role in checking the abuse of power and upholding the rule of law.
As an aside, the data also revealed that JRs in which the defendant is a Local Authority have significantly lower success rates than environmental cases — both at permission stage (32% as opposed to 48%) and final hearing at first instance (4% as opposed to 24%). It would be helpful to examine whether this trend also emerges in cases in which the defendant is a Local Planning Authority as personal experience suggests that, generally, cases do not fare well in the Planning Court. This may be partly due to the diminished deadline of six weeks to challenge decisions within the sphere of the Planning Acts. This makes compliance with the Pre-Action Protocol procedure extremely challenging and can force claimants to issue claims protectively.
The bottom line
The continuing onslaught on the process of JR is unjustified and disproportionate with regard to environmental cases. The MOJ’s own data confirms that the few cases taken fulfil a valuable function in enabling individuals, community groups and NGOs to play an active role in protecting the natural environment and maintaining the rule of law.
*Restrictions include the doubling of Administrative court fees, reductions in public funding, reduced time limits for lodging applications for JR in relation to planning matters, exposing interveners to adverse costs, lowering of the threshold for the refusal of permission in cases in which it is “highly likely” the outcome for the claimant would have been similar if the actions they are challenging had not occurred and the removal of a right to an oral renewal in cases assessed by a judge as “totally without merit”.
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