Judicial review win: how we stopped the government pricing people out of taking it to court

27 Sep 2017
Together we've stopped the government making it harder for ordinary citizens, charities and communities to challenge bad environmental decisions.

Imagine the government wanted to chop down ancient woodland – yet no one dared to take it to court because the legal bill could change at any time during the court case.

Faced with unknown expense only those with deep pockets would risk bringing a case – leaving most of the hard-pressed public and cash-strapped community groups priced out of justice.

It sounds unfair. But that’s exactly what the government’s new rules meant. We believed the move was unlawful and together with the RSPB and Client Earth took a case to the High Court to stop it – ironically using the very court process we were trying to defend.

Thanks to our generous supporters we are lucky enough to have a highly effective legal team. And thanks to their work, the judge’s decision means that when people challenge the government about decisions that affect the environment – like plans to chop down woodland or build on an important natural site – the maximum amount the case will cost will have to be fixed early on.

The government isn’t above the law

Not even the Queen is above the law. The Magna Carta established that. And 800 years later the principle continues to be the bedrock of British justice and our democracy.

Everyday our government, whether at Westminster or your local council, takes environmental decisions which have profound impact on our lives – where we build factories and roads, what we allow in our food and fields, and how we power our homes and offices.

Citizens and communities have the right to challenge whether those decisions are lawful through a process called judicial review. But they can only do so if they know they can afford it.

Thanks to a UN treaty – signed in the Danish city of Aarhus in 1998 – the costs of doing this were fixed and capped so citizens could be sure they wouldn’t face bankruptcy if they lost.

But in February 2017 the Ministry of Justice removed these caps. This meant that legal costs could change at any time during the court case. We believed that it was breaking the Aarhus treaty. That’s why together with the RSPB and Client Earth we took the government to court.

Raising funds for our legal work

When we launched a fundraising appeal for our legal work back in June, we shared the story of Mrs Pallikaropoulos.

She challenged the Environment Agency over a decision about a local incinerator that had health implications for her community. But because of the new rules her costs soared to an unbelievable £90,000.

Unpopular and unlawful new rules

The government had plenty of warning that the new rules would have a harmful impact.

95% of those who responded to its original consultation said they opposed the changes. 26 environmental charities and legal chambers wrote to the Lord Chancellor opposing it. And based on evidence we provided, a House of Lords Select Committee slated the new rules before they were introduced, stating: “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."

Then one week in September it all went horribly wrong for the government.

It lost a vote in the House of Lords: peers voted 142 to 97 to ‘regret’ the Ministry of Justice’s new rules. And the United Nation’s Economic Commission for Europe found that the UK was breaking its international obligations for access to justice under the Aarhus Treaty.

Delivering the final blow, came the result of our High Court case. The judge ruled it would be unlawful for the government to use the new rules to increase the potential legal bill for the person or organisation bringing the case once it had been given permission to proceed – unless they had been lying about their income or won the lottery!

Our environmental rights – to have information about, participate in and challenge environmental decisions – have been hard won. They are far from perfect and are under constant threat. But this successful campaign has held off one threat and Friends of the Earth will continue to fight in the future.

Thank you to all our supporters who make important wins like this possible.

Join Friends of the Earth