Terms of Reference
The Environmental Litigation Working Party seeks to review, influence and inform UKELA members on matters connected with environmental litigation. This includes:
- regulatory reform, including enforcement, civil sanctions and sentencing;
- access to justice, including judicial review reform and the rules for costs in environmental cases;
- improving the machinery of environmental litigation, for example by consolidating more cases within the new First-tier Tribunal (Environment).
The Working Party has a wide membership, including solicitors, barristers, consultants and regulators. We meet three to four times per year. Meetings are generally held in London, but we aim to provide dial-in facilities for those who wish to participate by phone. We exchange information in-between meetings via email.
The Working Party is open to any UKELA member with an interest in the area. Contact the convenors if you would like to join the group.
The Litigation Working Party sends out a regular email bulletin detailing recent developments in environmental litigation. To receive this email, please contact the convenors: email@example.com
To be announced.
Recent Events and Activities
The group held a Working Party session during the online annual conference on Friday 26th June. The recording will be available shortly.
On 27 May 2020 the group hosted a Zoom seminar, titled: Covid-19: Illegal Wildlife Trade, Habitat Loss and International Environmental Law
We welcomed three expert speakers:
Professor Nicolas de Sadeleer, Professor of Environmental Law at Saint-Louis University (Brussels), and Legal Advisor to Client EarthStephen Tromans QC, 39 Essex ChambersTim Scott, Senior Policy Advisor, Environment, Nature, Climate, Energy, United Nations Development Programme (UNDP). Members can watch the seminar.
On 6th November 2019, Squire Patton Boggs hosted the WP for a seminar, ‘Climate Change Litigation and the Right to Protest’, where we had 4 speakers. Anna Dews of Leigh Day, Zion Lights, a spokesperson for Extinction Rebellion, Stephen Hockman QC of 6 Pump Court, and WP Co-Convenor Peter Cruickshank all gave presentations.
On 7th May 2019, the WP was hosted by CMS for an “International Wildlife Crime” seminar, chaired by Richard Kimblin QC of No.5 Chambers. Speakers included Mary Rice, Chief Executive Officer of the Environmental Investigation Agency, Guy Shorrock, Head of Investigations at the RSPB, Ivan Lopez, chief Galapagos Guide, and Angus Innes, Prosecutor with the Environment Agency.
On 24th July 2018, BLM hosted us for a seminar, ‘An Environmental Court after Brexit’? where speakers included Hon Justice Brian Preston SC, Chief Judge of the Land and Environment Court of NSW Australia, Mary Creagh MP, Chair of the Environmental Audit Committee, Greg Jones QC of FTB Chambers, and Michael Salau, Partner with BLM.
We are extremely grateful to all our speakers for their time and expertise to make for a really fascinating evening.
The Working Party is taking an active interest in the following areas:
Costs in environmental cases
Sentencing environmental offences
Judicial review reform
An environmental tribunal
Costs in environmental cases: We responded in December 2015 to a Ministry of Justice consultation on proposed changes to the environmental costs regime that was introduced in April 2013. Our response raised concerns, amongst other things, that the proposals would create uncertainty for all parties, cause delays and satellite litigation, and risk putting the UK in breach of the Aarhus Convention. A copy of the response is available below.
Sentencing environmental offences: The Sentencing Council's new guideline for environmental offences took effect in 1 July 2014. It represents a significant departure from past sentencing practice, involving the introduction of a new tariff-based approach to setting fines.
The Working Party has been taking a close interest in development of the guideline and its application in practice. We met with representatives of the Sentencing Council in February to talk through the final version of the guideline, prior to implementation. We responded to the Sentencing Council's consultation in summer 2013. The response is available below.
Civil Sanctions: New regulations that came into force on 6 April 2015 make it possible for the Environment Agency to accept enforcement undertakings to deal with offences under the Environmental Permitting Regulations, instead of prosecuting them. UKELA welcomes this move as the first extension of civil sanctions to mainstream environmental offences, albeit we would have preferred to have seen a wider range of civil sanctions made available.
The Working Party is keen to see the guidance on the use of enforcement undertakings updated to address general issues connected to their use, as well as points specific to environmental permitting offences. We are in touch with Defra and the Environment Agency on this issue. We set out our key points in this note to the Environment Agency.
Judicial review reform: The Ministry of Justice published plans for reform, following the second consultation on this area in nine months. The underlying aims of its proposals was 'to stem the growth in applications for judicial review' (December 2012 consultation) and to reduce delays to development projects in particular.
Together with the Planning & Sustainable Development Working Party, we submitted joint responses to both of the recent consultations. The first response (January 2013), raised concerns that reducing the time limit for bringing planning judicial reviews 'would give rise to a real sense of injustice and to actual injustice'; and cautioned against removing the right to seek an oral permission hearing for applications that have been rejected on the papers as 'entirely without merit'. The second response (November 2013) was broadly supportive of proposals for a specialist Land and Planning Chamber of the Administrative Court, but raised concerns about some proposal including those to restrict standing in a way that might be contrary to the Aarhus Convention. Copies of both response are available below.
Extending the jurisdiction of the environmental tribunal: Defra and the Welsh Assembly consulted in Spring 2013 on reforms to the Environmental Permitting Regulations that included transferring permitting appeals to the new environmental tribunal (the environmental jurisdiction of the First Tier Tribunal). UKELA supports consolidating more appeals in the new tribunal. The consultation response is available below.
>Enforcement and Sanctions Policy: response to the Environment Agency's consultation, January 2018
>Reduction in Sentence for a Guilty Plea Guideline: response to Sentencing Council consultation, 5 May 2016