Access to Justice in Environmental Matters

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Yesterday I had the pleasure of attending the launch of the report Ensuring Access to Environmental Justice in England and Wales at a seminar at King’s College hosted by the UK Environmental Law Association (UKELA). The Report is the result of deliberations of a Working Group chaired by the Hon Mr Justice Sullivan examining whether the current regime of judicial review in England and Wales fulfils the UK Government’s obligations under the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The Report deals with the ‘third pillar’ of the Aarhus Convention on access to justice, more specifically Article 9(4), which states that the procedures which the contracting parties rely on “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair equitable, timely and not prohibitively expensive.”. The Report concludes that the current law on costs, including the potential exposure to costs where an applicant for judicial review is unsuccessful, is not in compliance with the Aarhus Convention. Reaching this conclusion, the Working Group argues that the requirement of costs not being “prohibitively expensive” is not merely a reference to court fees but includes the total exposure to costs, i.e. the risk of being ordered to pay costs for other parties and requirements of cost undertakings for interim injunctive relief. In line with these conclusions, the report makes a number of recommendations in relation to the awarding of costs and access to legal aid for claimants in general.


Although the Report deals specifically with access to justice in environmental cases before the English and Welsh courts, the conclusions and recommendations ought to spur interest for lawyers dealing with other areas of law as well as other jurisdictions. For instance, bringing environmental cases before Scottish courts equally remains an undertaking that few individuals, NGOs and grassroots organisations can afford. Similarly, the need for a shakeup in the rules governing legal aid and affordability of court cases in general is an issue that goes beyond mere environmental cases.

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