Changes to judicial review are pricing communities out of justice

New changes to “judicial review” legal cases mean protecting the environment might just have got a whole lot more expensive.

Equality before the law. It’s one of the oldest principles of our democracy – that the courts should treat you the same whatever your situation and background.

But when it comes to environmental legal cases, new changes mean that winning a case might now have more to do with the depth of your pockets than the strength of your arguments.

What is a judicial review?

Judicial reviews are legal cases taken against the government or another public body when they are suspected of breaking the law.

They are a crucial way of protecting our environment when there is, for example, overdevelopment of an area of outstanding natural beauty, illegally high levels of air pollution, or threats to local wildlife.

Anyone can take a judicial review, but they can be risky and expensive – having to pay the other side’s legal costs as well as your own if you lose a case.

How has Friends of the Earth used judicial review in the past?

Whether it’s fighting fracking, defending renewable energy policy, or saving bees and beavers, Friends of the Earth has a long history of using judicial review to pull the government up when it’s breaking the law.

When the government decided in 2011 to suddenly slash solar subsidies ahead of schedule they put thousands of jobs and the progress being made by the industry at risk.

We acted quickly and launched a judicial review against the moves.

The High Court said that the government’s plans were unlawful and when the government later appealed the court ruled in our favour a second time. Solar subsidies and thousands of jobs in the industry were saved.

The Supreme Court rejects the government’s application to appeal against rulings that its plans to rush through sudden cuts to solar tariff payments are illegal.

We don’t only take cases against national decisions though. We also take on cases from local communities on the environmental issues important to them.

And we help other communities to go and take their own cases through free legal advice and briefings on the subject.

What has changed?

Until February 2017, there was a fixed limit on the amount losing a case could cost you.

For individuals, the maximum of the other side’s legal costs you could be made to pay was £5,000. For organisations like Friends of the Earth it was £10,000.

This limit, although still a considerable cost, meant that you knew where you stood when taking a case.

It gave people some certainty over how much they might have to pay, and therefore allowed people to take cases in the public interest knowing it wasn’t going to bankrupt them.

New changes made by the government have removed the fixed limit, meaning that your costs could now be increased, at any point during the process.

Instead of being sure that you can pay the full costs of a case – you now won’t know how much that will be. And may end up getting struck with huge court bills once it’s already too late to back out.

What does this mean?

We don’t know how much every case will cost going forward now the fixed limit has been removed, but we do know how much some used to cost before it was introduced in the first place.

When Lilian Pallikaropoulos challenged the Environment Agency over health concerns arising from a local incinerator, she was landed with a massive £90,000 bill.

Who would dare take a case if losing could mean such a hefty sum?

Unfortunately, now we might see a situation where only the very wealthy are in a position to risk such a huge amount of money to stand up for their local environment.

This could mean a huge reduction in the number of cases and lots of bad decisions going unchallenged.

But don’t just take my word for it. In February 2017 a House of Lords Committee report concluded with concerns 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”.

What is Friends of the Earth doing about the changes?

Everyone should be able to protect their local environment if and when the government breaks the law. The legal system must be based on the strength of one’s arguments not the depth of one’s pockets.

This isn’t just our opinion. It’s the law.

There is considerable international and EU law stating that protecting the environment cannot be something only open to the few, but must be available to all. That’s right, we believe that these changes themselves are unlawful.

We have tried almost every method of getting the government to change their minds. In 2015, over 100 Friends of the Earth supporters submitted responses to the government’s consultation on the changes.

Judicial review of judicial review cases

We have urged government MPs and ministers to change their minds. Now we are down to the last resort. We are going to use the very mechanism we are trying to save in order to save it: judicial review.

It’s a special kind of irony that government changes which make it harder for people to stop suspected law breaking are, we believe, breaking the law themselves.

So we are taking a judicial review case over the changes to judicial review cases.

We, along with our friends at ClientEarth and RSPB, have launched a case against the government to reverse the changes.

We have submitted our legal documents and a High Court judge has considered our case strong enough to go to trial.

We have now been given a trial date. We will be having our day in court on 19 July.

Post written by Connor Schwartz,  15th June 2017