Removing the costs cap will make it harder for most people to challenge public bodies in the courts, writes shadow justice secretary Richard Burgon.
It is a cornerstone of our democracy that ordinary people have the same access to the justice system as the very richest people. But the latest change being introduced by the government could mean only those with the deepest pockets are able to challenge public bodies that are breaking the law.
Last year, Britain’s most senior judge, Lord Thomas of Cwmgiedd, said ‘our justice system has become unaffordable to most’. He was talking about the combined effect of reforms to legal aid and increases in court and tribunal fees. Millions of people were finding the gates of the legal system slammed shut in their faces.
But now another change is being brought in by the government that could push access to justice even further out of reach for ordinary people. A change in the cost of taking a public body or the government to court.
As readers will know, if a public body makes an environmental decision that you do not believe is lawful, you are able to challenge that decision in court through judicial review. A recent example is the case won by ClientEarth against the government’s failure to tackle illegal air pollution. But as well as charities bringing these cases, community groups and individuals can challenge decisions affecting their local area too.
Take, for example, an individual who wishes to challenge plans for a new road in their neighbourhood that they believe will cause the destruction of countryside, farmland and wildlife habitats. Under the current system there is a fixed cap of £5,000 on the amount of the other side’s legal costs they could be forced to pay if they lose the case. This is still a considerable financial risk, but some protection at least. But reforms mean that this cap will no longer be fixed, and could be raised or removed completely. In some circumstances individuals could now find themselves having to pay upwards of £70,000. This is a financial risk that only the very rich could afford to take.
This road example is not hypothetical. It was a legal case taken by an individual against Norwich County Council in 2015. The claimant argued that the council had made the decision to fund the road building based on misleading evidence with multiple errors in it, and therefore the decision must be overturned before irreparable damage was done to the environment. In the end, the county council admitted it had acted unlawfully and the decision was quashed by the High Court.
This is just one of countless examples of public bodies making poor decisions. It would be naïve to think public bodies are infallible. This is why it is important that we can all challenge these decisions when they go wrong and hold all levels of government to account. But if no one can afford to take the risk, then unlawful decisions will slip through unchallenged. Councillor Andrew Boswell, involved in the Norwich road case, later commented: ‘It would have been impossible for [them] to contemplate legal action without knowing the extent of [their] financial liability in advance.’
There is a slew of big infrastructure projects coming up: HS2, a new nuclear reactor at Hinkley, the Heathrow third runway and the expansion of fracking to sites across the UK. I’m sure it would be easier for the government to make its decisions relating to these projects with as little scrutiny as possible. But nobody should be for all practical purposes above the law – no matter how frustrating a court case is for them.
Labour is challenging this change in the law by forcing a debate in the House of Commons. Whether it’s the Norwich Northern Distributor Road or the Heathrow third runway, decisions that affect our countryside, wildlife and the environment must be made carefully and within the law. To ensure that checks and balances are in place to protect our local communities, we need a system in which everyone can take part – not one where only the richest can find their way into the courtroom.
Richard Burgon MP is shadow justice secretary