Access to justice in environmental matters at member state level
Razzaque, J. (2005) Access to justice in environmental matters at member state level. In: Thijs , F. M. and Somsen, H., eds. (2005) Yearbook of European Environmental Law. (5) Oxford University Press, pp. 67-92.
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Access to justice has been a topic of interest in the EU even prior to the 1998 Aarhus Convention. The Aarhus Convention focuses on procedural rights and not substantive matters. While dealing with access to justice, Article 9 of the Convention takes account of access to information, public participation in the decision-making and access to administrative and judicial procedures. At the EU level, two separate directives deal with access to information and public participation in the decision-making, respectively. The draft EU directive on access to justice in environmental matters (2003), which is discussed in this paper, concentrates on the enforcement of legislation relating to the environment by members of the public. The concerns of the NGO communities were clear from the consultations carried out by the EU on the proposed EU Directive on access to justice in environmental matters. The main concerns related to the definitions which, in some cases, did not follow the wordings of Aarhus Convention. In their view, the provisions related to standing and recognition procedure are also not satisfactory. Questions were raised regarding the necessity of the opt-out mechanism. There was also an issue that the draft directive on access to justice in environmental matters should have taken a more effective role on the cost implications of any legal action brought by environmental organisations. Moreover, some non-legal barriers might jeopardise the effectiveness of the directive. Though all the EU member states have signed the Aarhus Convention, only a handful of members have so far managed to ratify it. One of the member states, the UK, is working towards a speedy ratification. A case study of the UK suggests that quite a large number of research works have been done on all three pillars of Aarhus Convention. This paper mentions, albeit briefly, three recently completed research projects on access to justice in the UK. So far as standing is concerned, UK law refers to a ‘sufficient interest’ test. In most of the environmental cases, the judges have taken a restricted approach while defining and applying the ‘sufficient interest’ test. The judiciary in the UK can review decisions taken by public authorities. However, they are only allowed to examine the procedural, and not substantive, illegality or impropriety. This situation creates an obstruction to justice when one considers that there is no third party right of appeal in the UK. There is a concern as to the expensive and time-consuming legal system of the UK which is not fair and equitable and will not pass the Aarhus test. This paper explores the issue of a separate environment court and whether that would create an ‘independent and impartial tribunal’ for environmental matters. The paper concludes with a hopeful note that the EU’s directive on access to justice in environmental matters will provide member states the necessary guidance and will lead to a better access to justice in all EU member states.