Lawyers Say Ministers Weigh Ending Cost Caps on Green Challenges
The government says it has no plans to remove cost protections for well-founded environmental claims. Environmental lawyers say what they hear in private meetings points the other way.
What the lawyers say is being discussed
According to the lawyers, the Ministry of Justice has met a hand-picked group of stakeholders in private. The talks are said to cover plans to scrap the cost protections and to move the UK away from the Aarhus convention.
Other possible changes are on the list too. Cost caps could be doubled at each stage of a challenge. Protection could be lifted if a court finds misuse of the judicial review process. Groups that crowdfund a challenge could be exposed to costs of up to 70% of the money they raise if they lose.
How the protection works now
The convention is an environmental treaty the UK signed in 2005. It guarantees a legal right to take part in democratic decisions on environmental matters, from sewage pollution to new roads and datacentres.
Under the treaty, an individual who brings an environmental claim and loses pays no more than £5,000 of the other side's costs. For an organisation the limit is £10,000. The aim is that going to court over the environment does not price out individuals and public interest groups.
Starmer and the A47 challenge
Work on changing environmental judicial reviews started under Keir Starmer's government, which often cast nature as an obstacle to growth. Starmer singled out the activist Andrew Boswell as an example of campaigners bringing claims that thwart growth. That included a two-year fight against the A47 expansion in Norfolk, which Boswell lost.
Boswell's campaign was funded by £73,000 from 2,000 individuals. He says it brought the community together in Norfolk.
Lawyers and campaigners push back
Carol Day, a senior environmental solicitor at Leigh Day, said the changes would "bring environmental litigation almost to a halt". She said the government has offered no hard evidence that legal action is holding things up.
Sarah Finch's grassroots challenge over an oil well in Surrey changed UK climate law. She said the proposals would have stopped her group from bringing it, because the group would never have risked paying the other side's fees.
Kyle Lischak, head of ClientEarth UK, called the right to challenge unlawful decisions one of the few ways people can hold those in power to account. Niall Toru of Friends of the Earth said nature is not what holds the economy back. He pointed to floods, droughts, pollution and climate breakdown as costing people and businesses billions.
Lawyers fear the private meetings show ministers speeding towards leaving the convention. The government denies this. Day said that even without leaving, the changes would leave the UK significantly out of line with the treaty.
A government spokesperson said ministers remain committed to the convention and to keeping access to environmental justice affordable. The spokesperson added: "There are no plans to remove costs protections for well-founded claims."
Source: the Guardian