26 - A Valentine’s Day Update…… on the Aarhus Convention

“Roses are red,

Violets are blue,

If you cap my costs

Then I’ll cap yours too?”

Love it or hate it: it’s Valentine’s Day, dear reader. And what better way to spend it, than reading a blog about the Aarhus Convention. Number 26 in our series.

(The usual caveat: the following are my views alone, and not the views of my colleagues.)

I think it’s fair to say that I am in a love-hate relationship with the Aarhus costs capping rules. We have our ups and we have our downs. A good chunk of my practice simply wouldn’t exist without them. But it is galling when you win, as your recoverable costs are limited too. It’s tough. Perhaps we need couples’ therapy. Or perhaps I’m spending too much of my time thinking about environmental law, such that I have started to anthropomorphise a niche provision of the CPR concerning environmental cost caps in a concerningly public manner. Either way, I’m sure therapy is the answer. But moving swiftly on.

What’s new in Aarhusland?

Something I don’t love: the UN special rapporteur on environmental defenders, Michael Forst, appointed under the Aarhus Convention (Solid hook- Ed), has condemned the UK’s approach to environmental protestors. He describes “very worrying information” about “the increasingly severe crackdowns on environmental defenders in the United Kingdom, including in relation to the exercise of the right to peaceful protest.”

The special rapporteur noted in particular his concern that peaceful protesters are being prosecuted and convicted under the new provisions of the Police, Crime, Sentencing and Courts Act 2022, and his concern that the Public Order Act 2023 is similarly being used to criminalise peaceful protest. Having myself advised environmental protest groups on the scope of these new provisions, the rapporteur’s description of what is now happening on the ground in the UK doesn’t surprise me at all. It is now increasingly difficult to be involved in a protest of any kind without being at risk of criminal liability.

The rapporteur also expressed his alarm that presiding judges in the UK have forbidden environmental defenders from explaining to the jury their motivation for participating in a given protest, or indeed from mentioning climate change at all. This is an increasingly common practice: and it has now spread to the courts imposing restrictions on other people reminding juries of their rights.

On that front, you may have read about the Old Bailey protest last year, in which an activist, Trudi Warner, was arrested for holding up a sign outside the Old Bailey in a place where jurors could not avoid seeing it. What did it say?

Well, the sign reminded jurors of their absolute right to acquit a defendant according to their conscience. You might recognise that particular sentiment from a plaque that proudly sits within…………… the Old Bailey.

Understandably, Ms Warner, 68, is now currently being pursued by the solicitor general for contempt of court. Following this decision, dozens and then hundreds more similar protests have sprung up outside courts across the country. It is as yet unclear how the government proposes to deal with this escalation. Hopefully the government’s response will not give anyone with a UN mandate cause for further comment.

One final thought on juries. If it seems like the government is suddenly going cold on jury trial, it is worth remembering what it has said on previous occasions, about the jury’s “significant historical place in our legal traditions, and the role jury trials can play in securing the fairness of certain trials”. Fond words indeed. Perhaps I’m not the only one in a love-hate relationship with an abstract legal procedure.

Happy Valentine’s Day.

This blog post was written by Alex Shattock.

Authors

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.