Thursday, September 17, 2009

AARHUS CONVENTION?

COMING SOON IN UK - ACCESS TO ENVIRONMENTAL JUSTICE?
AT LAST!!


EUROPEAN COURT OF JUSTICE
RULES ON COST OF ACCESS TO JUSTICE:
An ECJ decision (C147/07 16 July 2009) related to Ireland has implications for the UK with respect to the provisions of the AARHUS CONVENTION. Pressure on the UK government to deal with the questions on the cost of environmental litigation will be increased by the infringement proceedings being brought against the Republic of Ireland

FAIR EQUITABLE TIMELY:
NOT PROHIBITIVELY EXPENSIVE:

The so-called third pillar of Aarhus requires parties to allow members of the public and environmental organisations access to the courts to challenge the legality of many environmental decisions and other environmental law breaches.


UK/IRISH COURTS GIVEN DIRECTION how to award costs in Judicial Review proceedings, and generally follow the 'costs in the cause' principle, meaning the losing party MUST PAY the winning side's costs. Court principles allow costs to be fixed at their discretion at the start of cases involving SIGNIFICANT PUBLIC INTEREST, but the 2008 Sullivan Report concluded that unless more was done the UK risked breaching Aarhus rules. The concerned Court Of Appeal again could not give a definitive ruling because of Lord Justice Jackson's ongoing fundamental review of civil costs.

EIA and IPPC:
The 1985 Directives on Environmental Assessment and 1996 Integrated Pollution Prevention and Control were amended to include provisions on access to justice which reflect the Aarhus Convention, thus the obligation of providing independent JR procedures that are NOT PROHIBITIVELY EXPENSIVE has now entered the language of substantive European Commission Law.

Irish and UK Law concerning cost and judicial discretion are similar, but are not proper transposition, which require a more definitive and binding form,
such as a court procedural role. The Commission succeeded on costs and access to justice, and although the Irish Judges had 'DISCRETION' not to awards costs against an unsuccessful party, this was not sufficient to implement the directive's requirements. 'Mere practise which cannot by definition be certain' could not be regarded as valid implementation of the obligations under the two directives.

UK GOVERNMENT'S COLD SHOULDER The UK government has an unrealistic narrow view, arguing that Aarhus costs refer only to minimal £130 fees payable in JR rather than to the HUNDRED THOUSAND POUNDS costs payable to the other party.
This year the Sullivan Review and Court of appeal rejected the government's unnecessarily narrow interpretation, and the advocate general's opinion was clear that the ban on prohibitively expensive costs extended to all legal costs incurred by the parties involved, and to all 'costs arising from participation' in the court procedures.

EU INFRINGEMENT PROCEEDINGS AGAINST UK:
concerning the Environmental Assessment directive and the issue of access to justice costs. No formal government response to May 2008 Sullivan Report, and the JACKSON REVIEW, (final due Xmas), noted the challenge of complying with Aarhus, and suggested possible mechanisms of reform.

WILL COMMISSION TOLERATE UK INTRANSIGENCE?
Its patience with UK prevarifications may be stretched to the limit and due to the Irish case the commission may feel confident to move on to the reasoned opinion stage of proceedings, almost inevitably leading to action before the ECJ unless the government concedes.

PAY BACK TIME?!
Is it too late for Mrs P?

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