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High UK legal costs deter challenges to environmental damage, UN warns
Government is obliged to financially assist citizens in legal challenges but court procedures are 'prohibitively expensive'

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Adam Vaughan
guardian.co.uk, Friday 27 August 2010 12.34 BST
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{Pesticides campaigner Georgina Downs celebrates outside the UK's high court after her legal victory, which was then overturned. She welcomed the UN's ruling. Photograph: Dominic Lipinski/PA}

The government is making it too expensive for campaigners to take environmental planning battles through UK courts, a UN tribunal has warned.

The judgment, hailed as hugely important by environmental law experts, could open the door to new rules covering legal costs and encourage more individuals and community groups to take their cases to the courts.

Under the Aarhus convention, which came into force in 2001 and was ratified by the UK in 2005, the government is obliged to give rights and financial help for citizens to mount legal challenges to cases of environmental damage – such as fighting the building of a new road, housing development or a local incinerator. The convention does not cover the legal defence of environmental protesters who commit vandalism or criminal damage to highlight their cause.

But in draft findings published on Wednesday, the convention's compliance committee said the UK was failing to ensure court procedures were not "prohibitively expensive". The committee called on the UK to introduce legislation and practical measures to overcome the financial barriers to environmental justice. Such access to justice is one of the three key pillars of the convention, which also gives the public rights to access environmental information.

James Thornton, CEO of the environment law NGO Client Earth, which brought the case to the compliance committee last year with the Marine Conservation Society, said: "These findings are game-changing for anyone fighting for their environmental rights. At the moment, the government and industries can ride roughshod over their environmental responsibilities, confident that the legal system's failings will make challenges impossible."

He continued: "If the government's word is to mean anything on the international stage, it must move effectively and decisively to remedy the gross unfairness of the UK legal system. For the first time citizens will be able to scrutinise and challenge environmental decisions from a fair position."

The UK courts are an expensive place to fight environmental cases, particularly compared with some of the other 43 European and central Asian countries that have ratified the Aarhus convention. A single day hearing in the UK can cost £100,000, said Client Earth. What's more, the combination of high legal costs of lawyers; loser pays principle; and risk of paying damages to commercial companies in the UK often deters many green campaigners from taking their cases to court in the first place.

The Environmental Law Foundation, which advises individuals and groups on environmental cases, has said nearly a third of its clients cited cost as a barrier to bringing a case to a successful conclusion. A 2007 report commissioned by the European Commission ranked the UK in the bottom five of European countries for affordable legal costs and legal aid, and warned the UK it was making it "prohibitively expensive" to mount environmental court challenges. In March this year, European environment commissioner Janez Potocnik issued Britain a "final warning" over the issue.

Georgina Downs, a British pesticides campaigner who has taken her case to the European Court of Human Rights after UK courts first ruled in her favour and then overturned decision, said: "This is a very important ruling that again highlights the current failings of the UK system for obtaining access to justice for those bringing critical health and environmental challenges that are clearly in the public interest."

She added: "The reason why costs in legal challenges are so high is often because of the amount that legal representatives, particularly barristers, are allowed to charge. For example, some QCs now charge up to £800 an hour for their services, which is outrageous." Downs said costs also deter many cases from ever reaching courts, unless individuals find a barrister to represent them pro bono or – as in her case – work at a reduced rate, with the individual or group doing some of the legal work themselves.

Polly Higgins, a lawyer who is campaigning for the destruction of ecosystems to be recognised as a crime against peace, said: "This recommendation now opens the door to the UK implementing similar rules of procedure for environmental cases as were implemented by the Philippines Supreme Court in April 2010 to protect those who wish to turn to the courts to protect their territory from damage and destruction without fear of escalating costs." The Philippines rules protect eco whistleblowers and allow citizens to file environmental cases where they defer payment of fees until after judgment.

A spokesperson for Defra and the Ministry of Justice said the government was considering the findings. "The UK government fully supports the principles set out in the Aarhus convention, including those relating to access to justice in environmental matters. We are carefully considering the committee's recently published draft findings along with our comments for submission to the committee," he said.