On 6 April 2011, the European Commission announced that it was referring the UK Government to the European Court of Justice for failing to rectify provisions standing in the way of access to environmental justice in UK law. This follows the incorporation of the UNECE Aarhus Convention into EU law. The so called ‘third pillar’ of that Convention consists of the right to review procedures and to challenge public decisions that have been made without respecting the first two pillars of the Convention (on freedom of information and public participation) or environmental law in general. The Convention is given effect in the European Union (inter alia) by Regulation 1367/2006 of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p.13) applicable as from 17 July 2007.
The Convention also has its own compliance mechanisms and the Convention Compliance Committee has itself examined two complaints against the UK on the basis that environmental litigation in the UK is “prohibitively expensive”. It held that the UK is not compliant with this provision of the Convention given the cost of bringing environmental challenges before the UK courts. This is an issue on which I worked, together with my PhD student, Radoslaw Stech, and Debbie Tripley of the Environmental Law Foundation (ELF). Our research showed that of ELF judicial review cases receiving favourable opinion from one of more lawyers to proceed further with case preparation, more than half failed on grounds of cost:
A referral to the ECJ is the final stage of the process of bringing Member States into line with EU law. It follows a formal letter of notice and a reasoned opinion. The European Commission is already on record as charting that the UK is among the bottom five of Member States in terms of costs and access to justice, finding significant obstacles placed in the way of would be claimants:
From the point of signing the Aarhus Convention, the UK Government has appeared rather blasé on this issue; almost as though it never envisaged that UK procedures could be other than compliant. Although it has in place much of the spade work which would alleviate the risk of prohibitive cost in environmental judicial review in the form of the recommendations of the Jackson Report on the funding of civil litigation,http://www.judiciary.gov.uk/Resources/JCO/Documents/jackson-final-report-140110.pdf only in November of last year did a consultation paper on the Jackson proposals appear. If nothing else, the referral by the European Commission will challenge the Government’s brinkmanship on this issue and should serve as a timely reminder that others do take seriously the ability of people to challenge public authorities on environmental decision making. One might suggest that this is what ‘big society’ is all about.