Civil Procedure (Amendment) Rules 2017

Baroness Jones of Whitchurch Excerpts

Wednesday 13th September 2017 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I had not intended to speak in this debate but I have an interest in it for a variety of reasons. First, I should declare an interest as a member of the RSPB, the Scottish Wildlife Trust and the Scottish Ornithologists’ Club, and as the owner of a cottage, which happens to be called “Craighead”, in an area of east Perthshire which is at risk of being surrounded by wind farms.

I am very conscious of the importance of the right of the public to challenge planning applications without undue cost where the proceedings would be unduly expensive. Therefore, in a sense I am very sympathetic to the point that the noble Lord, Lord Marks of Henley-on-Thames, has raised. On the other hand, as my noble and learned friend Lord Brown pointed out, I presided in the case of Edwards. That case raised a particular problem for us because we were sitting in the Supreme Court, where the environmental point was being taken not on the first appeal but the second. One reason that we were particularly anxious to refer the matter to the CJEU was to find out what the position is when cases reach the appellate stage and one has already had two hearings of the issue and is facing the cost of a third. Therefore, at the moment I am undecided as to which way to go.

There is a feature that is worth bearing in mind. It is very easy to take a blanket view about all the people who wish to challenge planning applications or other matters that affect the environment, and assume that they are all taking the proceedings in the most economical and responsible way possible. Judges are aware that human nature varies and applications vary, and that there may be circumstances in which the element of control which comes with the ability to vary the cap up or down, as has been pointed out, may be a useful method of controlling proceedings before they get out of control.

I will be interested to hear from the Minister about the background to this measure, and to understand and know whether it applies to appeals as well as to proceedings of first instance, before I decide whether I can support the Motion to Regret. I am in sympathy with it but not sure that I can carry it the entire way.

[Baroness Jones of Whitchurch (Lab)]

I am grateful for the opportunity to speak briefly in support of the Motion and I thank the noble Lord, Lord Marks, for giving us the opportunity. I refer your Lordships to my entry in the register of interests.

I wish to make a wider point about the consequences of this legislation. I speak as a passionate environmentalist and as someone who has maintained a sceptical eye on the environmental claims of the party opposite because, sadly, time and again the practical realities of its actions have not lived up to its lofty claims about defending the environment.

I was intrigued when I heard Michael Gove’s keynote speech setting out his own agenda to the WWF in July. He went further than the usual ministerial platitudes on these issues. He specifically praised organisations such as the WWF, the RSPB, the Wildlife Trust, Greenpeace, Friends of the Earth and so on. He said:

“Their campaigning energy and idealism, while occasionally uncomfortable for those of us in power, who have to live in a world of compromise and deal-making, is vital to ensuring we continue to make progress in protecting and enhancing our environment”.


He went on to say:

“On everything from alerting us all to the danger posed by plastics in our oceans and nitrogen oxide in our air, to the threats posed to elephants by poaching and cod by over-fishing, it’s been environmental organisations which have driven Governments to make progress”.


It is therefore ironic that the organisations holding the Government to account—which Michael Gove was keen to praise—are the same organisations which have now written to noble Lords urging us to support this Motion to Regret.

I have a specific question for the Minister, which is: has Michael Gove, the new Secretary of State for Defra, been fully consulted about these changes and is the Minister confident that he supports them? If so, we on these Benches will have to revert to our cynicism about his true intentions about working with those organisations to protect the environment.

It is clear that the proposed changes to the court costs will discourage environmental charities, local groups and individuals from holding the Government to account when they fail to live up to their promises about protecting the environment. I refer noble Lords, for example, to the heroic and dogged legal case of Client Earth on holding the Government to account on the question of clean air, which has wide and enormous public consequences. The case has true public benefits and there are many other cases like it.

Like others, I have read the Explanatory Memorandum, and I share the disbelief of the Secondary Legislation Scrutiny Committee that it does not make it clear why these changes are needed. There is no evidence of a flood of unmeritorious claims in court. The figure quoted of 153 cases in a year seems remarkably reasonable. It is also clear that a healthy number of those cases were successful, which rather underscores their validity.

I do not wish to prolong this discussion but the continuity and the streamlined thinking of the Government have been tested by this. I am not sure whether Defra and the justice department are thinking with like minds and I therefore urge the Minister to withdraw the proposals. In doing so, I make it clear that I will support the Motion if it is pressed to a vote.

[Baroness Parminter (LD)]

My Lords, I thank the noble Lord, Lord Marks, for bringing forward this regret Motion and exemplifying what this House does so well—standing up for the democratic rights of citizens to challenge authority and, as in this case, do so in the face of what is clearly an attempt by the Government to price people out of the opportunity to get environmental justice.

As the noble Baroness, Lady Jones, said, we are at a time when there is mounting pressure on our precious environment and, frankly, when better lives in a better future for all of us can be achieved only by respecting the value and constraints of the natural environment. Like the noble Baroness, Lady Young, as a former chief executive of the Campaign to Protect Rural England, I saw how local groups saw going to judicial review as a last resort. Unlike companies, local groups do not have the right of appeal when a local authority approves a controversial application. Costs protection provided groups with a certainty: they could assess the likely expenditure over the duration of a challenge and they could agree to take it forward.

I worry that there is not a clear rationale for the case the Government are making, as the Secondary Legislation Scrutiny Committee said. It is not as if the cases where the claimants sought to apply environmental costs protection rules were clogging up the courts—there were only 166 such cases in 2014-15 out of a total of over 20,000 judicial reviews launched. Equally, those cases had a markedly higher success rate than other types of cases going to judicial review, so they were not unreasonable.

There is evidence that, since the changes were introduced, there has been a chilling effect on the number of cases coming forward: environmental groups using Ministry of Justice data estimate a reduction of about a quarter since the introduction of the new regime. I ask the Minister for the ministry to clearly publish the data on the number of cases, so that the effects of the new regime can be fully evaluated.

Like the noble Baroness, Lady Jones, I find it very interesting to hear the fine words from last month of the Secretary of State for the Environment, Michael Gove, who said that,

“we have an opportunity, outside the EU, to design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes”.

Frankly, in the light of this, those words ring pretty hollow.