Civil Procedure (Amendment) Rules 2017
That this House regrets that the Civil Procedure (Amendment) Rules 2017 have been laid with insufficient regard to the overwhelmingly negative response to the proposed Rules during the consultation and to the lack of evidence that significant numbers of unmeritorious environmental claims are currently brought; that they may escalate claimants’ legal costs and act against the intention of the Aarhus Convention that the cost of environmental litigation should not be prohibitive; and that they are likely to have the effect of deterring claimants from bringing meritorious environmental cases (SI 2017/95 (L. 1)).
Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee, Session 2016–17
My Lords, this regret Motion raises three important matters of principle: first, the accountability of government and the rule of law; secondly, access to justice for the public and cost protection in environmental cases; and, thirdly, compliance by the United Kingdom with its international obligations.
Environmental cases are frequently brought by individual citizens and concerned organisations to challenge the executive action of government, national or local, which threatens the environment in which we all live and on which we all depend. Where government acts unlawfully, judicial review exists to enable such claimants to hold government to account. These cases are often complex and expensive. As a party to the Aarhus convention, entered into in 1998 under the auspices of the United Nations Economic Commission for Europe and ratified by the United Kingdom in 2005, enshrined in EU law, this country committed to guarantee in environmental cases to provide,
“adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive”.
In April 2013, finally and after much procrastination and an adverse decision of the Court of Justice of the European Union in a case called Edwards, the Government introduced rules to implement the convention requirement that costs should not be prohibitively expensive. They did so by establishing an environmental costs protection regime, which, among other things, limited the costs payable by claimants to defendants in environmental judicial review cases. Your Lordships may remember that, in the Criminal Justice and Courts Act 2015, although this House successfully secured amendments limiting the damage, the Government legislated to impose a number of harsh costs provisions on judicial review, but in that Act costs protection arrangements for Aarhus convention cases escaped attack. However, this February Liz Truss, then Lord Chancellor, laid before Parliament the Civil Procedure (Amendment) Rules 2017, to which this regret Motion is directed. I first tabled this Motion in March, but the sudden general election was called before it could be heard.
My first objection to the new rules is to the requirement that a claimant seeking costs protection must disclose,
“a schedule of the claimaint’s financial resources”.
That schedule must also disclose “any financial support” from others helping to fund the case. This requirement, I suggest, is invidious, offends against privacy and is likely—indeed, calculated—to deter potential claimants and their supporters. Supporters will be put off because they risk being ordered to pay costs. The European Commission, in a letter written in March, wrote that,
“a requirement for litigants to provide information of their own personal means is also likely to result in a chilling effect with many individuals not wanting to make their personal finances publicly known”.
That must be right.
The costs limits are £5,000 for individual claimants or £10,000 for businesses or organisations. My second objection to the changes is that the new rules provide that multiple claimants will each be liable for a costs order in those sums. Before these changes, the general practice was that the overall cap would apply even if there were several claimants, but that was not invariable. The convention Compliance Committee considered this change and has said that it could see no basis for this amendment, which, it said,
“removes an important possibility for members of the public to defray the costs of proceedings by sharing the cost burden with other concerned members of the public”.
It said that it,
“substantially increases the likelihood of extensive satellite litigation to determine the costs cap per claimant, further increasing uncertainty”.
However, the third and most important and powerful objection is that the new rules have driven a coach and horses through the whole principle of costs protection in environmental cases. That is because they provide that, at any stage of the case, the court may vary or remove all together the limits on the maximum costs liability of any party in an Aarhus convention claim. It is true that the rule pays lip-service to compliance with the convention by limiting the power to cases where removing protection would not make the costs of the proceedings prohibitively expensive. The rules define when proceedings are to be considered prohibitively expensive, which they may be if they,
“exceed the financial resources of the claimant; or … are objectively unreasonable”—
applying tests that roughly reflect those set out in the Edwards case, but which are extremely difficult to fathom. Any financial support of the claim by others must also be taken into account. I suggest that the overall effect is that any claimant may feel at risk unless his or her entire capital would be consumed by an adverse costs order. The reality is that costs protection which can be removed half way through a case is no costs protection at all. These rules undermine government accountability, diminish the rule of law and reduce access to justice in environmental cases for all but the very wealthy.
When the changes were first proposed, they were put out to consultation. The response was overwhelmingly negative. The Secondary Legislation Scrutiny Committee of your Lordships’ House produced a report that can only be described as scathing on the proposed changes. On the consultation, it said:
“The analysis in the EM”—
the Explanatory Memorandum—
“simply states that the consultation exercise received 289 responses. It does not explain, as it should, that for most of the questions the number supporting the Government’s proposal was less than ten: the vast majority of the responses received were against the proposed changes”.
The Committee further noted the Government’s policy aim of,
“discouraging unmeritorious claims which cause unreasonable costs and delays to development projects”,
but the Committee found no evidence to support the Government’s position. It also concluded that the Ministry of Justice had not addressed concerns and that,
“as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts”.
These rules inevitably deter legitimate challenges to government decisions. To take one example of their chilling effect, the Liverpool Green Party recently wished to challenge permission for a car park in an air quality management area granted by the council without its first undertaking an air quality assessment. The party was advised that it had a strong claim for judicial review, and it wrote a letter of claim. In its response, however, the council did not address the substance of the complaint but wrote that,
“it is noted that the court now has discretion … to vary the limits on maximum costs liability for Aarhus Claims and the Council will therefore require confirmation of the financial resources of your client in the event that it seeks a protective costs order”.
In the face of that letter, the party was unable to find an individual prepared to act as claimant, so the case was never brought.
I said at the outset that this Motion was about the rule of law. If the House passes this regret Motion, it will give the Lord Chancellor, who is widely held in high regard, an opportunity that he understands—better than his predecessor—the importance of government accountability, access to justice, the rule of law and of complying with our international obligations, in this case under the Aarhus convention. If he understands those things, he will withdraw these rules. I beg to move.
My Lords, I do not usually find myself on the opposite side of the debate from the noble Lord, Lord Marks of Henley-on-Thames, but here I am. I make just two comparatively brief points—first, that the original 2013 rules to which he referred, which the 2017 rules that we are considering today have replaced, were drawn up before the CJEU gave the judgment in the Edwards case to which the noble Lord referred. That case was originally referred to the CJEU in 2011 by the Supreme Court, in which I was one of the five sitting, under the presidency of my noble and learned friend Lord Hope of Craighead.
The original 2013 regime provided simply for fixed-cost caps for claimants and defendants. The noble Lord mentioned that the caps are £5,000 and £10,000 respectively, depending on whether it is one or more claimant. It costs £35,000 for defendants in certain environmental law challenges—judicial reviews—with no account being taken under those rules of the particular claimant’s financial position, whether they are a millionaire or a pauper, or of the strength of the challenge that they would bring.
The new rules were introduced after what seems to me an impeccable consultation process. It is true that, perhaps not unusually in this sort of situation, the great majority of those responding were unenthusiastic, to put it no higher, about certain aspects of the proposed changes, certain of which were changed following consultation. But the new rules take full account of the several factors set out by the CJEU in the Edwards case as being relevant to the proper approach to the Aarhus convention in this respect. It is true that the new approach is more complex and allows, as the old regime did not, for a variation of those default costs limits—variations, I should emphasise, in either direction, possibly in favour of a claimant, as access to justice might be thought to require, during and not merely at the outset of the legal challenge.
The measure, therefore, could be said to illustrate the age-old problem in the law of balancing the respective merits of certainty and flexibility—there of course being in all cases pros and cons of each. I, for my part, do not accept that meritorious claimants are likely to be deterred and, certainly, I do not regard these new rules as manifestly contrary to the rule of law, or being unlawful and the rest.
My Lords, I should perhaps make it clear that I deliberately refrained from referring to that case because it is sub judice, a judgment not having been given. So I have not referred to it and have not dealt with it. I take no issue with the noble and learned Lord so doing, because this is a case about delegated legislation but, nevertheless, I did not do so.
In so far as the sub judice rule would apply to a debate of this character, I respectfully do not for a moment accept that I am breaching it. I am suggesting that it is highly relevant to the present Motion to Regret, a Motion which, as the noble Lord said, was initially tabled in March and, therefore, before those proceedings. In so far as, for example, it is now said that we are in flagrant breach of the rule of law and all the rest of it, those issues fall to be decided properly in the context of full argument in those proceedings and not to be well-nigh pre-empted by a Motion to Regret today. For my part, I would not support a Motion to Regret without the benefit of the High Court’s judgment on the legal issues arising.
My Lords, I wonder if I might address the points made by the noble and learned Lord, Lord Brown, not from the point of view of his confidence in flexibility and the wisdom of judges but from the point of view of the people who regularly have to consider whether they are willing to put forward their personal assets and privacy and, indeed, of those organisations representing the public which are placed in that position. I should declare an interest: I am president, vice-president or chairman of practically half the conservation and environmental organisations that are involved in these cases.
I very much welcome the Motion to Regret of the noble Lord, Lord Marks, and I really do regret the way that the Ministry of Justice has barrelled on to implement the removal of the cap on claimants’ costs in environmental cases, in spite of the criticism by virtually all consultees and the views of the Secondary Legislation Scrutiny Committee, which I thought issued its opinion in a rather more trenchant and stinging way than I have seen it operate in the past, which was interesting.
As a country we have been criticised for some considerable time by the United Nations and others for our lack of compliance with the Aarhus convention. I was interested to note that yesterday the noble and learned Lord, Lord Keen, in briefing Peers on the Brexit Bill, said that although we will lose recourse to the ECJ in relation to environmental issues, our responsibilities under the Aarhus convention will remain. Alas, our responsibilities under that convention are not being delivered on a regular basis and we continue to be criticised internationally. Therefore, I regret the MoJ’s move as it takes us even further away from compliance.
I have personal experience of being involved with charities that have initiated judicial review in these circumstances. These charities are representatives of communities. The trustees of these bodies take very seriously their responsibility to represent communities on these important issues. However, they are now incredibly wary of committing to challenge the decisions of public bodies through judicial review as they can have no assurance—other than the sorts of assurances which the noble and learned Lord, Lord Brown, attempted to give on the judiciary—that costs will not escalate and that they will have no influence over that as the cap can be changed at any stage in the process.
For individuals or unincorporated public bodies contemplating initiating a judicial review against a public body, the unpredictability and possible scale of the costs, the need to demonstrate the ability to pay and the risk to their homes and other assets are, indeed, chilling. Therefore, we have a situation in which individuals are being placed in a position where they have to think long and hard about taking such a case, as do responsible, publicly focused charities.
We do not know how many cases fail to be taken and how many people are deterred by these new arrangements as those decisions are made by individuals, families and communities and, in the case of charities, made behind closed doors. As an ex-chief executive of several charities, I suspect that charities would have to have pretty brave boards of trustees to undertake what is likely to be expensive judicial review under the current circumstances. We are very much seeing communities being priced out of environmental justice. I therefore urge the Minister to reconsider this decision to remove the cap and I urge noble Lords to support a reversal of this measure.
Before the noble Baroness sits down, and for the sake of clarity, what exactly did she mean by charities being communities? What is the status of that?
My Lords, I am delighted to explain that. In many cases our charities are the voice of the public and constitute the way in which the public organise themselves to have a voice in environmental challenges. As a nation we are blessed with a rich range of charities in the environmental field, which have operated for many years in hugely responsible ways to hold government to account on behalf of the communities in which they operate. I have much experience on both sides of this equation, having taken cases on behalf of charities such as the RSPB and having been on the receiving end of cases when I was chief executive of the Environment Agency. I value the role of charities, as do local communities.
My Lords, I congratulate the noble Lord, Lord Marks, on bringing this regret Motion. I am always conflicted by regret Motions, because they are extremely weak, which of course infuriates somebody like me. However, at the same time they do two things. First, they send a message to the Government—they have to sit and listen and, perhaps, do something good for a change; but secondly, they allow people like me to get up and rant, and I would like to rant for a minute, because I am furious about this. I cannot see how any Government can reduce justice for all, and that is the principle at stake here. The principle is that justice is for everybody, however rich or poor. The noble Lord, Lord Marks, raised a case where a political party wanted to bring an environmental case and did not have the money for it. This will happen more and more.
We can look at some of the things that the Government are doing at the moment—for example, HS2, which is the most incredibly wasteful, stupid, unnecessary piece of infrastructure they could possibly have devised. That will raise all sorts of issues. It is already steaming through sites of scientific interest, and there will be huge environmental problems. By removing the cap, the Government are reducing the hassle they will experience in pushing this through. I therefore urge the Lords to vote for this Motion and show the Government that what they are doing is completely wrong. This Chamber has a real opportunity to make life better for people—and of course, people who are on a low income, and charity and community groups who do not have the money, will suffer because of this.
My Lords, I will continue with the issue of community and talk about my community, Gresford, where I live. Many years ago, I was involved in a judicial review. There was an application for opencast mining at Gresford colliery. Members may recall that that was the scene of a terrible mining disaster in 1934, when 266 men lost their lives underground and only 12 bodies were ever recovered—the rest remain there. Therefore, the issue of opencast mining was clearly one of considerable concern. The county council, in considering a planning permission, did not adequately advertise it, and there was not proper consultation.
I appeared pro bono for the Gresford amenity society to take the county council to court to challenge its decision. The court of two judges decided that I was quite right—it had not been properly advertised and there had not been proper consultation. However, one judge was prepared to give us a remedy, which was to quash the decision, while the other judge was not. It is a question of discretion for each judge as to what remedy should be given, even if you are successful on the facts. When this small group, who were not wealthy, had to decide whether to pursue the matter and ask for a second hearing—with, of course, counsel involved on the side of the county council and possible liability for costs—they were not prepared to take the matter further. However, the county council properly readvertised and there was proper consultation, and as a result of submissions made by that group and others, proper safeguards were put into consent to the planning application. Today, one can see that at Gresford colliery the workings have all been renewed and it looks very pleasant. However, that was the limitation of judicial review as it was then.
Therefore, when in 2005 the United Kingdom ratified the Aarhus convention, I felt a sense of relief. As appears from the declaration made by the UK Government upon signature and confirmed on ratification, the United Kingdom recognised the right of every person to live in an environment adequate to his or her health and well-being. The United Kingdom guaranteed the right of access to justice in environmental matters by the declaration it made on ratification, yet only five years later, in 2010, the European Commission took the United Kingdom to the European Court of Justice to determine whether it was fulfilling its obligations under the convention, specifically on the obligation that its judicial proceedings must not be prohibitively expensive.
My Lords, I had not intended to speak in this debate but I have an interest in it for a variety of reasons. First, I should declare an interest as a member of the RSPB, the Scottish Wildlife Trust and the Scottish Ornithologists’ Club, and as the owner of a cottage, which happens to be called “Craighead”, in an area of east Perthshire which is at risk of being surrounded by wind farms.
I am very conscious of the importance of the right of the public to challenge planning applications without undue cost where the proceedings would be unduly expensive. Therefore, in a sense I am very sympathetic to the point that the noble Lord, Lord Marks of Henley-on-Thames, has raised. On the other hand, as my noble and learned friend Lord Brown pointed out, I presided in the case of Edwards. That case raised a particular problem for us because we were sitting in the Supreme Court, where the environmental point was being taken not on the first appeal but the second. One reason that we were particularly anxious to refer the matter to the CJEU was to find out what the position is when cases reach the appellate stage and one has already had two hearings of the issue and is facing the cost of a third. Therefore, at the moment I am undecided as to which way to go.
There is a feature that is worth bearing in mind. It is very easy to take a blanket view about all the people who wish to challenge planning applications or other matters that affect the environment, and assume that they are all taking the proceedings in the most economical and responsible way possible. Judges are aware that human nature varies and applications vary, and that there may be circumstances in which the element of control which comes with the ability to vary the cap up or down, as has been pointed out, may be a useful method of controlling proceedings before they get out of control.
I will be interested to hear from the Minister about the background to this measure, and to understand and know whether it applies to appeals as well as to proceedings of first instance, before I decide whether I can support the Motion to Regret. I am in sympathy with it but not sure that I can carry it the entire way.
I am grateful for the opportunity to speak briefly in support of the Motion and I thank the noble Lord, Lord Marks, for giving us the opportunity. I refer your Lordships to my entry in the register of interests.
I wish to make a wider point about the consequences of this legislation. I speak as a passionate environmentalist and as someone who has maintained a sceptical eye on the environmental claims of the party opposite because, sadly, time and again the practical realities of its actions have not lived up to its lofty claims about defending the environment.
I was intrigued when I heard Michael Gove’s keynote speech setting out his own agenda to the WWF in July. He went further than the usual ministerial platitudes on these issues. He specifically praised organisations such as the WWF, the RSPB, the Wildlife Trust, Greenpeace, Friends of the Earth and so on. He said:
“Their campaigning energy and idealism, while occasionally uncomfortable for those of us in power, who have to live in a world of compromise and deal-making, is vital to ensuring we continue to make progress in protecting and enhancing our environment”.
He went on to say:
“On everything from alerting us all to the danger posed by plastics in our oceans and nitrogen oxide in our air, to the threats posed to elephants by poaching and cod by over-fishing, it’s been environmental organisations which have driven Governments to make progress”.
It is therefore ironic that the organisations holding the Government to account—which Michael Gove was keen to praise—are the same organisations which have now written to noble Lords urging us to support this Motion to Regret.
I have a specific question to the Minister, which is: has Michael Gove, the new Secretary of State for Defra, been fully consulted about these changes and is the Minister confident that he supports them? If so, we on these Benches will have to revert to our cynicism about his true intentions about working with those organisations to protect the environment.
It is clear that the proposed changes to the court costs will discourage environmental charities, local groups and individuals from holding the Government to account when they fail to live up to their promises about protecting the environment. I refer noble Lords, for example, to the heroic and dogged legal case of Client Earth on holding the Government to account on the question of clean air, which has wide and enormous public consequences. The case has true public benefits and there are many other cases like it.
Like others I have read the Explanatory Memorandum, and I share the disbelief of the Secondary Legislation Scrutiny Committee that it does not make it clear why these changes are needed. There is no evidence of a flood of unmeritorious claims in court. The figure quoted of 153 cases in a year seems remarkably reasonable. It is also clear that a healthy number of those cases were successful, which rather underscores their validity.
I do not wish to prolong this discussion but the continuity and the streamlined thinking of the Government has been tested by this. I am not sure whether Defra and the justice department are thinking with like minds and I therefore urge the Minister to withdraw the proposals. In doing so, I make it clear that I will support the Motion if it is pressed to a vote.
My Lords, I thank the noble Lord, Lord Marks, for bringing forward this regret Motion and exemplifying what this House does so well—standing up for the democratic rights of citizens to challenge authority and, as in this case, do so in the face of what is clearly an attempt by the Government to price people out of the opportunity to get environmental justice.
As the noble Baroness, Lady Jones, said, we are at a time when there is mounting pressure on our precious environment and, frankly, when better lives in a better future for all of us can be achieved only by respecting the value and constraints of the natural environment. Like the noble Baroness, Lady Young, as a former chief executive of the Campaign to Protect Rural England, I saw how local groups saw going to judicial review as a last resort. Unlike companies, local groups do not have the right of appeal when a local authority approves a controversial application. Costs protection provided groups with a certainty: they could assess the likely expenditure over the duration of a challenge and they could agree to take it forward.
I worry that there is not a clear rationale for the case the Government are making, as the Secondary Legislation Scrutiny Committee said. It is not as if the cases where the claimants sought to apply environmental costs protection rules were clogging up the courts—there were only 166 such cases in 2014-15 out of a total of over 20,000 judicial reviews launched. Equally, those cases had a markedly higher success rate than other types of cases going to judicial review, so they were not unreasonable.
There is evidence that, since the changes were introduced, there has been a chilling effect on the number of cases coming forward: environmental groups using Ministry of Justice data estimate a reduction of about a quarter since the introduction of the new regime. I ask the Minister for the ministry to clearly publish the data on the number of cases, so that the effects of the new regime can be fully evaluated.
Like the noble Baroness, Lady Jones, I find it very interesting to hear the fine words from last month of the Secretary of State for the Environment, Michael Gove, who said,
“we have an opportunity, outside the EU, to design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes”.
Frankly, in the light of this, those words ring pretty hollow.
My Lords, I have the privilege of chairing your Lordships’ EU Sub-Committee on Energy and Environment. It is in that capacity that I make my comments.
Earlier this year, we took evidence for and produced a report called Brexit: Environment and Climate Change. We went through the normal areas of devolution and the complexity of bringing environmental legislation back into the UK, our influence on climate change policy, policy stability and a lack of EIB investment. What took all our members by surprise was that many of our witnesses felt the most important issue was that the Government’s environmental action could be called to account—by the European Commission and the European Court of Justice—at present and that would disappear following Brexit. They also felt there were difficulties in replacing that authority. I quote our witness, Maria Lee, professor of law at UCL, who said of environmental legislation:
“It sounds so far-fetched to say that we might replace the Commission, but we have taken the Commission’s role in supervising compliance completely for granted for 40 years, and that will go. We should think about whether it is feasible to replace that with a parliamentary body, a government body or some other sort of public body that will supervise government and agency compliance with the law. It sounds ambitious in the current climate, but we have had this for 40 years and we are about to lose it. It is important”.
At the end of our evidence sessions, and when we wrote the report, we made two recommendations of the whole committee:
“The importance of the role of the EU institutions in ensuring effective enforcement of environmental protection and standards, underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, cannot be over-stated. The Government’s assurances that future Governments will, in effect, be able to regulate themselves, along with Ministers’ apparent confusion between political accountability to Parliament and judicial oversight, are worryingly complacent”.
That was the conclusion of the committee. It went on to say:
“The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum”,
left by the Commission,
“in ensuring the compliance of the Government and public authorities with environmental obligations. Such enforcement will need to be underpinned by effective judicial oversight, and we note the concerns of witnesses that existing domestic judicial review procedures may be inadequate and costly”.
That was before these measures came in.
The Government responded by saying:
“The UK has always had a strong legal framework for environmental protections, and will continue to have a system of judicial review by UK judges after EU Exit. The judicial review mechanism enables any interested party”—
any interested party—
“to challenge the decisions of the Government of the day by taking action through the domestic courts”.
The committee felt that judicial review was a very weak substitute for current mechanisms, but it would certainly be disappointed if that judicial review procedure, which it sees as the right way forward post Brexit, has been weakened to this very considerable degree.
My Lords, I want to say one thing about this statutory instrument. It deals with a particular class of judicial review relating to the environment. It is special in this way: there are limitations of cost already in the system—of £5,000 where the claimant is claiming only as an individual, not as or on behalf of a business or other legal person, and £10,000 in all other cases. For a defendant, the amount is £35,000. In the previous arrangements that was fixed. It is certainly easy to think that, for a claimant, £5,000 might be a substantial amount in relation to his or her environmental interest.
These rules allow the court jurisdiction and discretion to alter these figures either up or down. It is important that the discretion is limited by this phrase:
“The court may vary such an amount or remove such a limit only if satisfied that … to do so would not make the costs of the proceedings prohibitively expensive for the claimant”—
that is the rule from the convention—and,
“in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant”.
The protection for the claimant is the jurisdiction and discretion of the court within the limits that that sets out. Is not in any way a damaging type of jurisdiction or discretion, but one that can help people who have a need for that. That must be taken into account in considering this instrument.
My Lords, my response to the noble and learned Lord is that these rules remove the certainty that potential claimants previously enjoyed. That is the vice as I see it. It is essential in these cases that a person considering starting proceedings knows at the outset the maximum liability they will incur. It is no answer to them, when they are thinking of bringing proceedings, that the cap may be reduced as well as increased. They want to know. If they do not know at the outset when considering bringing these proceedings what the maximum is, the likelihood is that many of them will be deterred from bringing these proceedings. That is the damage to access to justice.
Noble Lords will have to wait a little longer for what I suspect will be the most enlightening speech of the evening.
I congratulate the noble Lord, Lord Marks, on tabling his Motion, which we on these Benches, and perhaps those who are not, will shortly support through the Lobbies. There are only two things wrong with the Government’s policy in relation to the specific part of the Civil Procedure (Amendment Rules) we are debating: the process from which it emerged and the substantive effect of the policy it embodies.
On process, yet again the Secondary Legislation Committee, composed of highly experienced Members from all parts of the House, finds cause to be highly critical of the lack of information on or a clear understanding of the policy objective and intended implementation of the radical changes embodied in the rules. As we have heard, these are likely to deter challenges to decisions in the planning arena under the Aarhus convention by raising the cap on costs to be paid by unsuccessful applicants—very often, voluntary organisations or other groups of a non-commercial nature—to the benefit of the defendants, who are likely to be better endowed financially and, in this environmental area, may include the Government or public bodies. I concur with the rebuttal—if I may use as strong a term—made by the noble Lord, Lord Pannick, of the observations of the noble and learned Lord, Lord Mackay.
On process, the committee found that the Explanatory Memorandum accompanying the rules apparently forgot to report that fewer than 10 of the 289 responses—some them admittedly merely replicating answers provided by Friends of the Earth—supported the proposals. The vast majority of the respondents averred that the proposals failed to meet the principles emerging from the Edwards case, to which reference has already been made. The committee stated that the Government should have better explained their interpretation in the memorandum and identified any changes made following the consultation—they did not do so. It went on to point out that, whereas the consultation document pledged a review within two years, no such undertaking is mentioned in the Explanatory Memorandum supporting the statutory instrument we are debating. It called for clarification of the Government’s intentions—no doubt the noble and learned Lord the Minister will provide such clarification.
The committee’s conclusion was damning. It proclaimed:
“The Ministry of Justice has not addressed any of these concerns in its paperwork and we therefore draw the matter to the special attention of the House on the ground that the explanatory material … provides insufficient information to gain a clear understanding about the … policy objective and intended implementation”.
That is a very severe critique by the committee.
Time and again, we have similar critical reports from the committee and still the Government proceed to adopt a cavalier approach to the process, which, at a time when Brexit is in train, is even more worrying than in the past. What undertakings will the Government make to improve their lamentable performance in the use of secondary legislation not merely in this area but across the whole range of secondary legislation?
It would appear that there is already evidence of the chilling effect of the new regime, to which some references have already been made. As we have heard, Friends of the Earth estimates that the number of cases has reduced by around 25% since the introduction of the new regime. Can the Minister, if not today then subsequently, publish the relevant data so that a proper assessment of the position can be made?
It is instructive to compare the different scenarios before and after the change. Friends of the Earth cites two cases under the old regime which exemplify the workings of the previous system. In one case, the Campaign to Protect Rural England Kent sought judicial review of a planning decision affecting an area of outstanding natural beauty. It succeeded in having the planning permission quashed by the Court of Appeal. Commenting on the case, CPRE Kent said that,
“the certainty of costs protection allowed Trustees and staff to assess the likely expenditure over the duration of such a challenge”.
In another case, this time in Norfolk, residents of Norwich were much exercised over proposals to build a major road which they contended would irreversibly damage the environment, destroy areas of countryside, farmland and wildlife habitats, and increase noise and pollution. A local parish councillor sought judicial review on behalf of the Wensum Valley Alliance and the council, to its credit, accepted that the scheme was unlawful. It was quashed in the High Court. However, the salient point is that the councillor—Councillor Boswell, who was also involved in the case—stated that the local community group, the Wensum Valley Alliance, would have,
“found it impossible … to contemplate legal action without knowing the extent of their financial liability in advance”.
We heard earlier the experience of the Liverpool Green Party, which again illustrates the chilling effect of the new regime. The net result of the changes seems likely to reduce significantly access to justice in this area of the law, in which applicants under the old system were 12 times more likely to succeed than fail. Given that under Brexit, there would be no recourse to the European Court of Justice, the recent developments are even more worrying.
As we heard from the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Parminter, we await the outcome of a case brought by Friends of the Earth, the RSPB and ClientEarth contending that the changes already made are incompatible with the UK’s obligations to provide access to justice as set out in European law. Can the Minister offer any assurances that, with or without Brexit, UK citizens will not be deterred from challenging authority by the potential exposure to large claims for costs?
I understand that we currently await a report from the compliance committee of the Economic and Social Council on the UK’s compliance with its obligations under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. I trust the Government will abide by the recommendations of the committee and thereby distinguish this country from some countries in, for example, eastern Europe which seem, alas, to be reverting to a more authoritarian mode of government whereby access to justice and the independence of the courts appear in danger of being undermined.
My Lords, I begin by thanking the noble Lord, Lord Marks of Henley-on-Thames, for tabling this evening’s Motion on this topic. I welcome the valuable contributions from noble Lords across the House.
The United Nations Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, generally known as the Aarhus convention, requires countries which have signed the convention to guarantee rights for their citizens of access to information, public participation in decision-making and access to justice in environmental matters. In particular, it requires those countries to make sure that the public has access to legal procedures to challenge relevant decisions taken by the countries’ public authorities and specifies that those legal procedures should, among other things, not be “prohibitively expensive”. Both the UK and the European Union are signatories to the Aarhus convention, and the convention has been incorporated—albeit in part—in EU law, including the requirement that the legal costs of relevant environmental claims must not be prohibitively expensive.
The costs regimes and the amendments made to them to fulfil this requirement in respect of claims within the scope of the Aarhus convention are similar as between England and Wales, Scotland and Northern Ireland. However, there are important differences. In the present context, I address the position in only England and Wales. In seeking to comply with the “not prohibitively expensive” requirement, successive Governments have taken steps to control the costs that a losing claimant may be ordered to pay a winning defendant. I will set out key recent events, although most of them have been touched on at various points during the course of this debate.
In April 2013, an environmental costs protection regime was introduced by amendment to the Civil Procedure Rules, which capped the amount of costs that a court could order an unsuccessful claimant to pay to other parties. Under this regime, the claimant’s costs liability to a successful defendant was capped at either £5,000 for claimants who were individuals or £10,000 for other claimants, as alluded to by the noble and learned Lord, Lord Mackay of Clashfern. The defendant’s costs liability to a successful claimant was similarly capped, but at the rather higher level of £35,000.
I am mid-sentence but the noble Lord may come in in a moment.
It is important to appreciate that while the court has the power to review the cap on a claimant’s potential cost liability, it will be able to do so only on very limited grounds. Indeed, the only two grounds I am aware of are, first, that the claimant misled the court as to its financial position when the cap was originally fixed, which is hardly a sympathetic position, or secondly, that there has been such a material change in the claimant’s financial position that the cap should be reviewed, whether downwards or upwards. The noble Lord, Lord Pannick, wanted to make an observation.
I do not want to overstate my case; I just want to be clear that I have understood the rules correctly. When considering bringing proceedings, the person concerned cannot know what the cap is and at any stage during the proceedings the cap can be increased, as the noble and learned Lord says, if the judge takes the view that circumstances have changed. That is my understanding.
Let us be absolutely clear about what the position is. When a claimant begins the proceedings, there is a default cap, but on seeing the schedule of means, the court may vary that cap, downwards or upwards—downwards to the benefit of the claimant, upwards to the benefit of the defendant, potentially. Therefore, that is appropriate.
The regulations as drafted suggest that there can be alteration depending upon the court’s view of the merits or demerits of the case as it goes along. Am I wrong in that?
I do not accept that. Quite apart from anything else, I again make the point that some of these matters have already been submitted in argument to the High Court. It has heard those arguments and will deliver judgment upon these points. I am quite clear in my own mind that the cap has a default position; it may be varied in light of the schedule of means, but once it is fixed there have to be identifiable and fixed circumstances, such that the claimant misled the court in the first place, before it will be reviewed on an application by the defendant. It is very clear, and the grounds upon which that can be done are patently very narrow.
Perhaps the Minister will explain where those grounds are rigidly defined because they are nowhere in the rules, as I read them. The statement of financial resources has to be provided with the original application. It is not a question of there being a default cap which may then be varied on the basis of the statement of means. Rule 42 is absolutely clear that at the outset the statement of financial resources has to be provided.
On the second point, I do not demur. The point is that there is a default position but, in the light of the schedule of means that is produced at the outset, that may be varied down or up. I have no difficulty with that whatever. As to the first point that the noble Lord alluded to, I commend to him a little patience because the High Court is about to opine on these matters, having heard argument. He will be familiar with the pleading that the NGOs submitted in their judicial review and with the notes of argument that were submitted on behalf of the claimants and on behalf of the defendants in that matter. They focus on the very issue of the limited circumstances in which any variation can take place at a later date. I have referred to two possibilities. They are the only two possibilities of which I am aware, and I put that into Hansard. If there were a third or fourth, I would have mentioned it.
The Government understand that, following the most recent changes in February, environmental claims continue to be brought. That said, the Government agree that it is too early to make a fully effective assessment of the impact of the changes to the environmental costs protection regime to date. We will keep the impact of the new environmental costs protection regime under review and will review it formally when we have sufficient data, so I seek to reassure the noble Baroness on that point.
The Government need to strike a balance between enabling appropriate claims to proceed and making sure that unmeritorious claims are not encouraged. Those who can pay towards the costs of unsuccessful claims should do so, subject always to the requirement that Aarhus convention claims should not be prohibitively expensive. Overall, the Government believe that the reforms that have been introduced are fair and reasonable and certainly comply with our international obligations. That is the subject of a current challenge on which the High Court is about to opine. I respectfully suggest that it would be premature for this House to anticipate the opinion of the High Court on these points and I hope that the noble Lord will withdraw his Motion.
My Lords, I am very grateful to everyone who has spoken, particularly of course to those many noble Lords who have spoken in favour of my regret Motion. I will be very brief in closing, but will address the point made just now by the Minister and by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. They both mentioned —indeed the Minister relied upon—the High Court challenge to the legality of these regulations. This Motion is a parliamentary Motion and entirely independent of the High Court proceedings. If the High Court challenge succeeds, that will be the end of the matter and the rules will be quashed. The question in that case is whether the then Lord Chancellor could lawfully make the new rules; the question for this House is whether she should have made the rules or whether they offend against the principles which I mentioned at the outset.
The central point in this regret Motion is that the new rules reduce costs protection, for precisely the reason set out by the noble Lord, Lord Pannick. Costs protection comes from having the confidence that when you go into a case and have a costs protection order, you will be limited in your liability to £5,000 for individuals or £10,000 for organisations. It is the claimant’s costs protection that is important in these cases. I invite noble Lords to remember that very often this is public interest litigation, where concerned individuals and concerned organisations—not all large, some of them small, often charities—go into litigation not for a personal interest but because they want to secure the public interest. Why would they go into that litigation with the risk that they are going to have their exposure radically increased during the case? I do not accept the Minister’s interpretation of the arguments that were put in the current challenge on the circumstances in which a limitation can be removed—that is not in the rules and we have not had the judgment.
This is the kind of litigation that we are concerned with. Costs protection is a very important part of it and was the Government’s response in 2013 to the Aarhus convention. This is what is necessary to comply with it, in terms of the politics of this House making sure that costs are not prohibitively expensive. I have heard nothing that persuades me to withdraw my regret Motion and I wish to test the opinion of the House.
Motion to Regret
Any application to vary the initial costs cap will be in the judge’s discretion. Perhaps I need to declare an interest: I have great faith in judges being given wide discretions and I have no doubt that they will be alive, as are of course the rest of us, to the importance of not exercising this new power in such a way as to give rise to the risk that future claimants will be deterred in proper cases from bringing the challenge.
The second point is this: the question of whether these new rules are unlawful is itself currently the subject of legal challenge. In proceedings heard by the High Court in July, three claimants—the Royal Society for the Protection of Birds, Friends of the Earth and ClientEarth—brought a full and detailed challenge against the Lord Chancellor to these rules. I have in fact read the 25-page skeleton argument that was submitted for the claimants in those proceedings and the 20-page response on behalf of the Lord Chancellor. I would suggest that the arguments are a good deal more nuanced than the noble Lord’s opening might suggest. Judgment was reserved in July and it remains outstanding.
In its judgment in February 2014, the court held that the United Kingdom was in breach of the convention. It held that the courts of this country did not appear to be obliged to grant protection where the cost of the proceedings was objectively unreasonable. Nor did protection appear to be granted where only the particular interest of the claimant was involved. The court concluded that in practice the rules of case law that had been applied did not satisfy the requirement that proceedings should not be prohibitively expensive.
So, although this declaration was made in 2005, it was not properly followed through. Then, there was the public consultation of September 2015, to which my noble friend referred, and the result was overwhelming opposition to the Government’s proposals.
The real problem with the statutory instrument with which we are concerned is the possibility that an application can be made to the court to vary the cost cap, up or down, and that introduces uncertainty, which must affect the minds of the people in communities who wish to challenge a decision of an authority or of government. It is the job of lawyers such as myself to advise people never to go to court if they can possibly help it, but who would want to go to court with the threat that the cost cap which you can judge and expect under the convention might go up or down? That is not supportable, and I hope that all your Lordships will join my noble friend in regretting this statutory instrument.
The next important event was the handing down in February 2014 of a judgment by the European Court of Justice in infraction proceedings relating to the United Kingdom’s compliance with the “not prohibitively expensive” requirement as at 2010. This concluded that the costs regime that had existed in 2010—before the new ECPR was put in place in 2013—was insufficient to comply with EU law and that specific provision giving effect to the “not prohibitively expensive” requirement was required; and it set out the essential requirements to be fulfilled by such provision. In the light of that ruling and related judgments by the European Court of Justice and United Kingdom Supreme Court in the Edwards case, which the noble and learned Lord, Lord Brown, referred to, the Government proposed amendments to the environmental costs protection regime. That consultation took place between September and December 2015, and the Government’s response was published on 17 November 2016.
As was mentioned by the noble Lord, Lord Marks, 289 responses to the consultation were received, with the vast majority opposed to the Government’s proposals. I note, however, that of the 207 responses from individuals, 103 of these used a template prepared by Friends of the Earth. It does not really help to advance an analysis of the consultation when that sort of behaviour is indulged in. It is fair to say that almost all the responses received were from those supporting the bringing of environmental claims. Of course, that was noted. But the Government had to balance the interests of claimants and defendants—including the Government and their agencies—in the light of the case law, while fulfilling but not necessarily going beyond the requirements laid down in the case law.
Following the consultation, the Government announced the way forward in November 2016. The changes, having been considered and agreed, with amendments, by the Civil Procedure Rule Committee, came into effect on 28 February this year. I will list them in a little detail because many of the changes are favourable to claimants and, indeed, were welcomed by claimant groups.
First, the scope of the costs protection regime was extended to cover a wider range of cases, including environmental reviews under statute engaging EU law, as well as judicial reviews. However, it has not been extended to private nuisance claims.
Secondly, the courts can now vary the level of the costs caps from their default levels; I will come back to this. This can be downwards, which is supported by claimant groups, or upwards, which is not. The court is required not to make a variation which would render the proceedings prohibitively expensive for the claimant and, conversely, not to decline to make a variation if the proceedings would without such a variation be prohibitively expensive for the claimant. As the noble and learned Lord, Lord Mackay of Clashfern, pointed out, the whole point of this was to ensure that claimants of very limited means could actually be brought down below the level of the cap, which previously was fixed. In determining what is prohibitively expensive, the court is required to have regard to the specific factors set out by the European Court of Justice for this purpose; for example, the prospects of success and whether the claim is frivolous, so there is some regard to the meritorious and the unmeritorious claim. I note in passing that this power to vary upwards is confined to England and Wales and I accept that this is what is particularly opposed by claimant groups.
Thirdly, there is now an express provision that when considering an application to vary the cap, the court must take into account the amount of court fees payable by the claimant in determining whether the variation, or any failure to make it, would render the proceedings prohibitively expensive for the claimant; in other words, the costs to be incurred.
Fourthly, touching on a point raised by the noble and learned Lord, Lord Hope of Craighead, there is now a requirement for the Court of Appeal to grant costs protection in appropriate cases, applying the same criteria for determining what is prohibitively expensive as the court at first instance. So that is now addressed. Again, these last two changes are generally supported by claimant groups. I emphasise again that it is explicit in the rules that, when exercising its powers in relation to costs protection, the court must always make costs orders that allow claims to proceed without prohibitive expense to the claimants.
The revised costs protection regime came into effect via changes made to the Civil Procedure Rules and by way of an SI that was laid before Parliament on 3 February this year, and which came in to force on 28 February. That SI received scrutiny from both the House of Lords Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments. The committees made some criticism, in particular of the Explanatory Memorandum attached to the SI, which I notice.
In addition, proceedings for judicial review were brought by a group of environmental NGOs, challenging these rules on certain limited grounds. There is nothing sub judice about the fact that the judicial review was brought, nor about the notes of argument, nor the pleading. I note that the proceedings were brought by the RSPB, Friends of the Earth and Client Earth. Those names will be familiar to all of your Lordships, particularly because it was those three groups that circulated a briefing note for the purposes of this debate. The briefing says that it is for the priced out of environmental justice debate on Wednesday 13 September in the dinner break. Fortunately, we managed to get in just ahead of that.
I will come back to that application for review but I notice that there has already been a hearing and that judgment is imminent. It is rather awkward timing that we have this regret Motion just before the High Court is about to opine on many of the points alluded to by the noble Lord, Lord Marks.
It is important to note that the revised environmental costs protection regime is not intended to make environmental justice less accessible. The new regime is, however, intended to be more proportionate so that, for example, very wealthy claimants should have the cap on what they should pay set at an appropriate level rather than at what, for them, may be a negligible level. Aarhus claims may be brought against local and central government, and we must have regard to the taxpayer’s interest in the costs of legal claims, as well as the position of claimants.
I will touch on a number of points made by the noble Lord, Lord Marks, in opening the debate on this regret Motion. First, he referred to the requirement to produce a schedule of means. However, it would be difficult to set an appropriate cap if you did not have a schedule of means. I note that the judicial review brought by the three NGOs I referred to does not even attempt to suggest that the production of a schedule of means is in itself a breach of the requirements under the Aarhus convention. What they sought to argue was that there may be an issue as to whether the schedule of means should be produced in public or in private. That is a neat question, and one which the High Court is in the course of considering. It will opine on that and the Government and others will take account of what the High Court has to say on that simple point.
The second point raised by the noble Lord, Lord Marks, concerned the variation in the cap. Much was made of the fact this would produce uncertainty and have a chilling effect. The noble Lord, Lord Pannick, said that it removes certainty, suggesting that at any time a claimant could suddenly find that their liability for costs had materially altered without any change in circumstances. That is simply not the case. A good argument is never improved by being overstated. It is important to appreciate that while the court has the power—
13 September 2017
Division on Lord Marks of Henley-on-Thames’s Motion
Motion agreed.View Details
House adjourned at 8.14 pm.