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I cannot answer for Lord Justice Jackson, but that is a subsidiary point. His point is that it is expensive to operate and uncertain in its outcome. Therefore, he regards it as an inadequate to the one-way costs shifting which the noble Lord, Lord Thomas, has rightly advanced as the best way to deal with these matters. Lord Justice Jackson's approach was, as counsel's opinion, to which the noble Lord and I have both referred, makes clear, endorsed by Lord Justice Sullivan's working party, which was very clear in saying:
"An unsuccessful Claimant in a claim for judicial review shall not be ordered to pay the costs of any other party other than where the Claimant has acted unreasonably- to go back to the noble Lord's earlier point-
"in bringing or conducting the proceedings".
I rely heavily, as noble Lords will have gathered, on the opinion of learned counsel, which some of your Lordships will have seen, and certainly the Minister, and more particularly-and perhaps in a sense, in fairness to him, more relevantly-those who advise him will have seen. Counsel make some interesting observations. They say:
"It is disappointing to see that whilst the senior judiciary increasingly recognises the relevance of the Aarhus Convention as a requirement of the rule of law, the Government's own legislative proposals do not recognise, or are not concerned with, the United Kingdom's difficulties in complying with the Convention.".
They go on to say, among other points, that,
"it does not appear to have been appreciated by those responsible for Part 2 of the Bill- this very Bill-
"that if the intention of the Government's proposals is indeed to reduce the costs of litigation, then the replacement of the need for ATE insurance altogether by the use of QuOCS would have a massive positive effect, particularly when combined with the inability to recover success fees: it would genuinely encourage participation in matters concerning the environment as envisaged by Aarhus. Lord Justice Jackson's proposals would stand some prospect of success in his aim of promoting rather than impeding access to justice".
Learned counsel conclude:
"In the circumstances, it is clear from the Aarhus Convention Compliance Committee that current costs rules run contrary to the international treaty obligations of the United Kingdom which the UK voluntarily accepted".
They go on to say:
"Two detailed reviews relevant to environmental proceedings in England and Wales have subsequently been undertaken and presided over by members of the Court of Appeal. They have been endorsed by the senior judiciary. The primary recommendation was"- again-
"the use of QuOCS in environmental cases, which would have a dramatic inroad into the 'costs follow the event' principle".
"By withdrawing the recovery of ATE premiums (... which cannot be met by claimants or their legal representatives) without providing at the same time for QuOCS", the Government have retreated from the full proposals of the two reviews conducted by the judiciary. Furthermore, they say:
"The consequence is that the UK, already in breach of its Convention obligations, is diverging from, rather than converging with, its own environmental expectations and those of the international community".
Finally, they say that,
"claimants who wish to protect the environment and participate in environmental justice are even less likely to be able to do so than at present".
That is a pretty comprehensive and damning indictment of the Government's approach to their responsibilities under the Aarhus convention to international law and, more particularly, to potential claimants in this country dealing with significant issues concerning the environment and what is adversely affecting the environment.
The remedy is in the Government's hands. It is, in their cherry-picking process of dealing with Lord Justice Jackson's report, to pluck this particular cherry and use it for the benefit not only of the citizens of this country but of this country's observance of its international obligations. I strongly support the noble Lord's amendment.