Key facts
- Environmental lawyers said the Ministry of Justice held private meetings with select stakeholders on removing cost cap protections.
- Under the treaty, individuals pay £5,000 and organisations £10,000 of the other side's costs if they lose an environmental claim.
- Other possible changes include doubling cost caps at each stage of a challenge, per the lawyers.
- Groups that crowdfund legal challenges could face costs of up to 70% of the money they raise if they lose, under a potential change.
- Leigh Day solicitor Carol Day said the changes would bring environmental litigation almost to a halt.
- A government spokesperson said there are no plans to remove costs protections for well-founded claims.
The UK government is considering stripping back legal protections that limit the costs community groups face when challenging planning decisions that affect nature, according to environmental lawyers. The Ministry of Justice has been holding private meetings with select stakeholders on plans to remove cost cap protections and distance the UK from the Aarhus convention, the lawyers said.
The Aarhus convention, an environmental treaty signed into law by the UK in 2005, guarantees the legal right to participate in democratic processes on environmental matters such as sewage pollution, new roads or datacentre developments. Under the treaty, an individual bringing an environmental legal claim pays only £5,000 of the other side's costs if they lose; for organisations the cap is £10,000. The purpose is to ensure environmental challenges are not prohibitively expensive for individuals and public interest groups.
Other possible changes include doubling cost caps at each stage of a challenge and removing costs protection where a court finds a misuse of judicial review. Another potential change would allow groups that crowdfund legal challenges to face costs of up to 70% of the money they raise if they lose.
Proposals to change environmental judicial reviews began under Keir Starmer's government, which repeatedly referred to nature as a blocker to growth. Starmer singled out activist Dr Andrew Boswell as an example of the nimbys and zealots bringing vexatious legal claims that thwart growth, including a two-year legal fight against expansion of the A47 in Norfolk that Starmer ultimately lost. Boswell said Starmer was putting a target on his back and that his campaign, funded by £73,000 in crowdsourcing from 2,000 individuals, brought the community together in Norfolk.
Carol Day, a senior environmental solicitor at Leigh Day, said the changes would bring environmental litigation almost to a halt. She said the government had produced no hard evidence of a bank of cases where legal action was holding things up. Another environmental lawyer said the proposals would fundamentally undermine access to environmental justice deliberately and mean potentially terrible decisions would not be challenged.
Sarah Finch, an environmental campaigner whose grassroots judicial review over an oil well in Surrey changed UK climate law, said the proposals would have prevented her group from bringing the case. Kyle Lischak, head of ClientEarth UK, said the right to challenge unlawful decisions is one of the few ways people can hold those in power to account. Friends of the Earth senior lawyer Niall Toru said nature is not holding the economy back and the proposals will not fix the problems.
Lawyers fear the private meetings signal the government is accelerating toward leaving the convention, which the government denies. A government spokesperson said the government is committed to upholding its obligations under the Aarhus convention, including maintaining access to environmental justice that is not prohibitively expensive, and that there are no plans to remove costs protections for well-founded claims.