The Government will publish proposals today (Thursday 17 November 2016) which lawyers claim will seriously restrict the rights of individuals to challenge in the High Court proposals which will have a significant impact on the environment.

Environmental claimants currently have certainty about their legal costs when applying for Judicial Review (JR). If they lose their case, they pay a capped rate of £5,000 if the case has been brought by an individual or £10,000 in all other cases.

Under the new proposed regime (1) JR applicants must provide financial information to the court and defendants will be able to apply to have the power to increase the cap if they think claimants can afford to pay more.

This calculation will be based on the cap and the court fee but will not consider the cost of instructing lawyers, making the cost of challenging environmental projects imposed on communities potentially prohibitively expensive.

According to lawyers the new proposed measures would take the UK into further non-compliance with EU law (2) and the Aarhus Convention (3).

Jamie Beagent a partner in the environmental team at law firm Leigh Day said: “These proposals will create a climate of fear and uncertainty amongst those wishing to challenge projects imposed upon them and their environment.

“It will certainly make it harder for individuals to challenge projects of high public concern, including the new runway at Heathrow, the UK’s performance on air pollution, HS2 or the proposals for fracking across the UK.”

Despite claims by the Government that the proposals were introduced to prevent claimants ‘abusing’ the process of Judicial Review, to delay or stop damaging infrastructure projects such as HS2, the MoJ has failed to produce any evidence or statistical evidence to demonstrate that there is a proliferation of meritless environmental cases.

Evidence obtained under the Environmental Information Regulations in 2015 confirms that environmental JRs make up a very small proportion of the total number of cases lodged annually (4) and that they show good success rates when compared to all cases (5).

The proposals also take England and Wales in the opposite direction of travel to Scotland and Northern Ireland, the latter running an almost identical consultation in parallel with the MoJ in 2015.

On 27th September, the NI Department of Justice announced that it would not be proceeding with adverse proposals based on responses to the consultation and, in fact, has proposed to improve the regime for environmental cases in several ways (6).

Mr Beagent concluded: “The UK once prided itself on the rule of law and the fact that individuals and organisations are able to access the justice system over decisions that will affect their lives and the environment around them.

“These proposals conflict with these principles and with international law. The bitter irony is that these proposals could be in place as soon as next month, making any challenge of this new enforced regime, through judicial review, difficult and potentially prohibitively expensive.”