Aarhus Convention Compliance by the UK - Essay Example

Aarhus Convention Compliance by the UK The Aarhus Convention is a multifaceted agreement binding member European nations to facilitate; matters of justice access, participation of the public in governance as well ass access of information by the public. The agreement was adopted in 1998 and two signatories meetings were arranged, one in 1999 and the other in 2000. Implementation of the Convention took off in 2001 and effectively came into force. In principle, Aarhus Convention has some link between the environment, economic and justice elements mainly targeting people’s involvement in accountability in governance. The UK is a signatory and debate has been rife in some circles about the commitment of the UK governments to comply with the provisions of the Aarhus Convention1. Some analysts have dubbed the Convention as one of the best in international platform. It however required requires member states to embrace its provisions in line with the need to promote the main pillars of the Convention. In Macrory (2008, p183), the Convention is particularly analysed as one of the most proactive moves that modern governments have made in an attempt to balance human rights, environment and accountability. “…to be one of the most forward thinking international treaty on public participation yet completed, it places obligations on the member state parties to ensure availability in their national law of procedural rights for the public based on the three pillars described in the Conventions title,” (Macrory, 2008, p239.) International platforms championing for better governance, especially those with provisions similar to those of the Aarhus Convention stress the need of the various organs of the government pulling in the same direction in their operations. According to the Johannesburg Principles formulated and proposed by senior world judges, the law can never be excluded from development agenda. The Principles state that the Judiciary is a key player in promoting adherence to appropriate environmental regulations in force. However, governments’ agencies have a tendency of failing to effectively work in tandem within the spirit of availing conducive environment for the implementation of several international agreements. A good example is the reluctance of the judiciary in the UK to remove financial barriers in civil cases that involve environmental issues. Rigidity still persists in the manner in which the judiciary in the UK approaches cost liability on the parties to a case. Issues that have particularly been raised concerning failure of compliance by the UK governments largely relate to access to justice. Failure of the government to facilitate public justice access is therefore a breach of one of the main pillars of the Aarhus Convention. Article 9 of the Convention provisions contains some regulations that outline how governments should carry out their implementation of the pillar touching on access of justice (Aarhus Convention, unece.org). The pillar on justice clearly states that the signatory governments shall safeguard provision of appropriate legal procedures that will enable the public to rise against environmental irregularities within public and private sectors. The Convention further provides that the availability of these justice services must ensure that fairness, equitableness, timelines and cost are within reasonable measures. Alternatively, barriers to the processes, especially financial must be eliminated or reduced to manageable levels. Contention within the corridors of justice in the UK heavily falls below the yardstick set out in the Convention. One of the challenged issues is particularly in the general practice that characterizes civil proceedings, where the unsuccessful takes the financial burden of the successful party. To confirm fears that the UK could be making serious failures in implementation of the Convention, it was reported in the year 2007 that the UK was among the worst legal cost regimes in the European Union. The report commissioned by the European commission was aimed at exploring the conditions laid by the government for access of environmental justice. A list of twenty five member states included in the assessment ranked the UK among the last five states. Several aspects of judicial procedures concerning environmental law were considered with an aim of establishing how much of an obstacle was created by the routines at the states’ judicial proceedings. Lord Justice Sullivan’s report of 2008 gave an account of England and Wales that concluded that the system of cost awards in the two countries represented the biggest barrier to the compliance plans of the UK to Aarhus Convention. Environmental justice in these countries was implicated to such an extent that the contribution of the rest of UK governments was eclipsed. Disproportionate cost awards in environmental cases were particularly adversely mentioned in Sullivan’s report, citing the words of Lord Justice Jackson, a commissioner in the Sullivan’s team. Lord Justice Jackson was of the opinion that the recommendation of conclusive reviews in judicial systems, with respect to civil litigation must bear the full image of real financial circumstances as well as the conduct of the claimant throughout the process. In a separate 2010 report of an analysis conducted by the Environmental Law Foundation found out that the cost issue in environmental justice in the UK was a major impediment to realization of Aarhus Convention provisions. Concerning the degree of adverse opinion by review cases regarding the chances of success of a plan to perform judicial review, the least number of respondents gave satisfactory prospects. Alternatively, a very high proportion of review cases revealed that specialist lawyers could have the necessary skills to turn around the fate of the systems. However, cost issues could still act against the experts. Sentiments from Sir Robert Carnwath (now Lord Justice Carnwath) regarding environmental litigation debate in the UK points at the limitation that the process presents to the majority of people, acting as a technical barrier to judicial fairness and equitableness. In recommendations for the same issues, Sir Carnwath proposed the creation of the Environment court or Tribunal, where serious matters of environmental litigation that are continually flouted in the ordinary court systems could be handled incautious specificity. These sentiments were strongly supported and reinforced in the report by the Environmental Justice Project conducted to establish the status of compliance in England and Wales. There is lack of coordination of government roles in the implementation of Aarhus Convention where responsibility seems to fall on one arm of the government and another does its business on the contrary. While the Executive arms of the UK governments try to make efforts towards ensuring that the costs issue is resolved amicably, the Judiciary contradicts itself by delivering verdicts likely to compromise the position of the government. As it was held in R v Secretary of State for the Environment, Food and Rural Affairs and others [2001] EWCA Civ 1950, the lack of cost awards to the winning party should be taken as an exceptionally odd outcome. At the same time, the courts have also given indications of the affirmative, in that even exceptionally higher than expected cost awards can be allowed. Generally, costs can fall in the range of between £70,000 and £150,000, but the court ruling in R v LB Hammersmith and Fulham [2004] EWCA Civ 1342 proved that the court could make a ruling raising these costs even higher than this2. Cases failure to go through the judicial procedure in the UK was attributed to reasons that were found out to be purely related to fear of cost, according to Stookes (2003). It was established that numerous cases were not presented to Court in the UK and the potential claimants reportedly feared the cost burden they would bear in case they lost their case to the other party. Despite the fact that many cases could reasonably be successful, they never got their way to the judicial process when cost elements were weighed, opting to remain out of court; and out of justice. The effect of high judicial cost on propensity to present cases before the court was adverse to such an extent that the cost can be labeled as a major barrier. The basis of the cost payment and awards is usually the protection of public good, according to the judiciary. Contrary to this opinion, it has been found out that is acts as a major impediment of justice if hundreds of cases are prevented from reaching the Court. Castle et al (2004) explained in their findings through the EJP that over sixty per cent of the respondents felt that the courts made a ruling from a misunderstanding perspective. The apparent lack of expertise from the courts with regard to comprehending environmental law raises serious concerns on the competence of the current system of justice; could have been the reason for proposal of a separate wing of the court system to specifically deal with environmental issues. It was also found out that the court system acted in sympathy in interpreting some principles of the law. Skewed judgment is therefore expected in cases that touched on sustainable development in the UK, creating a tendency to unfairly allow the cost burden to fall on the unsuccessful party. Likewise, the precautionary principle presets a very delicate area where the courts have been accused of misunderstanding environmental law and unfairly allowed cost awards to the case loser. It is possible to predict that the UK has a court system that is not ready to change and accommodate the ever changing environmental cases. According to Barristers Fordham, McCracken and Jones; Fordham; "…in general the courts too readily treat environmental issues from a property/planning mindset, as complex scientific areas warranting an unduly hands-off approach…" (Castle et al, 2004, p36). McCracken and Jones; "…English courts have sometimes in the environmental field taken what might be described as an approach of technocratic paternalism, viewing with suspicion the calls of participatory democracy as no more than undesirable obstacles to enterprise.” (Castle et al, 2004, p36) According to the (2004) briefing released by CAJE (Coalition for Access to Justice for the Environment), environmental justice can be dissected into two important matters namely; efforts to ensure a clean and safe environment without consideration of anyone’s background as well as ability to access legal solutions to environmental concerns. The brief identifies some issues in the UK’s situation with regard to compliance to the Aarhus Convention provisions. Barriers to environmental justice have been highlighted and deliberated on in the briefing, clearly pointing out the weaknesses in the judicial process in the UK regarding environmental law. In the briefing, barriers acting against the realization of complete implementation of the Aarhus convention include legal cost intricacies among others. Other barriers experienced in the UK’s judicial process regarding implementation of the Aarhus Convention are; judicial misunderstanding of environmental justice, the judiciary sympathizing with environmental matters, inadequate judicial review procedures, difficulties in obtaining injunction reliefs as well as presentation before the court of law. Each of the barriers is briefly discussed below, in light of the briefing done by CAJE (2004, p2). Alternatively, CAJE revealed that the issue of injunction sin the UK is laughable, since any government under obligation to ensure environmental justice is promoted by all means, could make a lot effort to improve the situation. In terms of injunctions allowed, the requirement that applicants ought to make “cross undertaking in damages” is unnecessarily prohibitive. Ordinarily, applicants are entitled by law to make appeals to the Court to stop the respondent from carrying on an alleged damage to the environment until such a time when the hearing has taken place. The essence of the injunction is to prevent pyrrhic results where the applicant wins in the end when a lot of preventable but irreversible damage has already occurred. CAJE pointed to the requirement of making the cross undertaking in damages as a major cause of judicial barrier since the cost usually high. Insurance principles guide the operation of the involved injunction fee, which has a huge potential of turning into a heavy financial liability3. In light of any difficulties regarding application of injunctions, the Convention demands that a review procedure be laid in advance outlining remedies and reliefs to be used. In the UK, this is an area where the convention has been flouted since injunctions are still complex (CAJE, 2004, p2). Environmental cases in the UK have been faced by complications of judicial review characterized by very limited scope. A comprehensive judicial review should have in consideration all the elements of a case without creating limitations within judicial interpretations. In environmental cases, it is a major practice that interpretation of facts of scientific nature is not appropriately and adequately done (Castle et al, 2004, p36). The recent judicial review has a scope that does not take care of the technicalities involved in merits based cases such as environmental cases, which have evolved to comprise complex parameters. It is therefore within reasonable thinking and positive criticism that a limited judicial review is not capable of handling serious cases in environmental law. Bad decisions are therefore going to continue in the courts, for as long as limitation of scope of reviews prevails. Citing similar scenes of judicial misunderstanding, irregularities have marred the judicial system in the verdicts given such as the one observed in The Belize Alliance of Conservation Non-Governmental Organisations v. The Department of the Environment and Belize Electricity Company Limited, where in what appears to be outright contempt, the Privy Council refused an injunction that would prevent further building of the Challilo dam. Making reference to the ruling made in Allen V Jambo Holdings, the Privy Council went on to deliver exemptions with regard to the commitment of an injunction. Following appeals upon denial of an injunction, the applicants were consequently denied the same. Earlier guidance on the same matter offered by Lord Walker of Gestingthorpe as well as Lord Steyn to the Committee of the Privy Council was of the opinion that an appeal should have been put into effect. Alternatively, the advice provided that the environmental clearance given should have been quashed in light of the compromise done to environmental impact assessment done regarding the construction of the dam. This is a pointer of how incompetent the court system in the UK is in handling environmental cases which present issues of merit. A blind following of inappropriate precedents in environmental law threatens the implementation of judicial reviews in line with the provisions of the Aarhus Convention. According to the report conducted by the University College of London, it was established that there is a general mistreatment of environmental cases. The manner in which the judiciary responds to environmental cases can not be compared to any other type of case. In the study, UCL considered fifty five cases that represented environmental review and found out that only four out of these cases were successfully concluded to satisfaction. According to Macrory and Woods (2003, p45), UCL report is a demonstration of the lack of a conducive environment for judicial procedure in the UK, showing a general reluctance of the governments to adhere to the Aarhus convention. As observed in the work done earlier by Sir Robert Carnwath, CAJE concurs that the provisions of the Aarhus Convention are likely to face serious hardships in implementation in the UK, since some cost issues are involved in the judicial system. Pointing at specific articles of the Convention, it is clarified that deliberate steps that ought to be taken in the spirit of judicial equitableness are missing in the UK. “Litigation through the courts is prohibitively expensive for most people, unless they are either poor enough to qualify for legal aid, or rich enough to undertake an open-ended commitment to expenditure running into tens or hundreds or thousands of pounds,” (Carnwath, 1999, p9). The governments seem to selectively apply appropriate practices in rulings instead of broadening such applications to facilitate the implementation of the Aarhus Convention which partly aims at improving judicial processes. According to UKELA (2004, p1), there is an apparently skewed practice in the application of pre-emptive costs orders (PECOs). The judiciary has been accused of reserving the use of this, preferable application of PECOs, which represent the correct stance regarding public interest. Exceptional application of favorable judicial procedures in the UK appears to be discriminative and limiting. Lord Justice Carnwath proposed the increased usage of PECOs to improve the condition of the poor status of litigation in the UK (Carnwath, 2002, p324)4. According to CAJE, there is lack of a clear cut regulation in the representation and standing in court by all stakeholders in the UK, even though the Aarhus convention is categorical that environmental protection should be accessible to any organization. Sympathetic admissions of certain cases in the UK can be said to be the trend whereas it should be free of barriers as provided for in the Convention. Recent case law shows that only a few conservation NGOs and similar interest groups have the access to automatic standing in court. The role of citizen groups as well as NGOs appears to be compromised due to the technicalities involved in standing regulations, since public interest test almost needs a group threshold (CAJE, 2004, p2). References Adebowale, M. (2003) Using the law: barriers and opportunities for environmental justice. London, UK: Capacity Global CAJE, (2004) Briefing: Access to Environmental Justice, [online] London. Available from: http://www.foe.co.uk/resource/briefings/caje_general_briefing.pdf [Accessed 18 January 2011] Carnwath, R., (1999) “Environmental Litigation – A way through the Maze?” Journal of Carnwath, R., (1999) “Judicial Protection of the Environment: at Home and Abroad.” Journal of Environmental Law Vol 16 No 9 pg 321 Castle, P., Day, M., Hatton, C. & Stookes, P. (2004) Environmental Justice, The Environmental Justice Project. [online] London. Available from: http://www.unece.org/env/pp/compliance/C2008-23/Amicus%20brief/AnnexCEJP.pdf [Accessed 18 January 2011] Environmental Law Vol 11 No. 1 Oxford University Press pp3-13 Etty, T. F., Kramer, H. L. & Somsen, H. (2005) Yearbook of European environmental law. London, UK: Oxford University Press. http://www.unece.org/env/pp/documents/cep43e.pdf Macrory, R. (2008) Regulation, enforcement and governance in environmental law. London, UK: Cameron May Ltd. Macrory, R. and Woods, M. (2003) Modernizing environmental justice – Regulation and the Role of an Environmental Tribunal. London, UK: Center for Law and the Environment, University College, London. Richard, B., (2004) R. v. LB Hammersmith and Fulham exp Burkett [online] Available from: http://www.richardbuxton.co.uk/v3.0/node/175 [Accessed 18 January 2011] Stookes, P (2003). Civil law aspects of environmental justice. London, UK: Environmental Law Foundation. Read More