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 convenor if you would like to join the group.
The Litigation Working Party sends out a monthly email bulletin detailing recent developments in environmental litigation. To receive this email, please contact the convenors: firstname.lastname@example.org
To be announced shortly.
On 7th May 2019 the Litigation Working Party is pleased to host an International Wildlife Crime seminar. It will begin at 4.45pm with registration from 4.15 pm at the London offices of CMS, at 78 Cannon St, London EC4N 6AF. We will finish with drinks and nibbles by 7pm.
The event is free of charge.
Please RSVP to Jill Crawford at Jill.Crawford@blmlaw.com to register for the event. Due to security at CMS anyone who wishes to attend the event must register no later than 48 hours prior to the event please. There will be facilities available to attend via Business Skype but contact details will be needed in advance please.
The seminar will be chaired by Richard Kimblin QC of No.5 Chambers, and our confirmed speakers include:
1. Mary Rice, Chief Executive Officer of the Environmental Investigation Agency
Mary will talk about the work the organisation undertakes investigating wildlife crime in relation to ivory trafficking in Africa and Asia and in particular recent successes in infiltrating criminal poaching syndicates in Mozambique and Zimbabwe.
2. Guy Shorrock, Head of Investigations at the RSPB
Guy will talk about his work investigating the illegal killing of birds of prey within the UK and also the RSPB involvement with the Wildlife Crime Enforcers. The RSPB took over the running of the conference for Wildlife Crime Enforcers in 1991, handing over to PAW (Partnership for Action Against Wildlife Crime) in 1997. Since then the conference has grown, with 140 attending the 30th Wildlife Crime Enforcers’ Conference in 2018.
3 Ivan Lopez, chief Galapagos Guide.
Ivan was closely involved in the investigation and prosecution of Chinese operators of a fishing vessel, found to have taken 2000 tonnes of sharks in Ecuadorean waters within the Galapagos World Heritage Site. He will address the difficulties of arriving at an appropriate deterrent sentence for offences of this magnitude.
4. Angus Innes, Prosecutor with the Environment Agency and part of LIFE ENPE
Angus will be talking about his work with LIFE ENPE and in particular his involvement with the workshop for prosecutors and investigators on wildlife crime that took place in Valsaín, Segovia, Spain. The workshop was jointly organised by ENPE and the CMS (Convention of Migratory Species/Bonn Convention) Secretariat and brought together prosecutors and investigators responsible for the enforcement against environmental and wildlife crime from 17 countries mostly from the Mediterranean region, including North Africa and Middle East, as well as legal experts from ENPE. The goal was to provide guidance and build capacity for reinforcing the prosecution of illegal killing, taking and illegal trade of migratory birds.
We really hope that you will be able to attend and look forward to seeing you there.
Recent Events and Activities
On 24 July 2018, we were delighted to welcome a distinguished panel of speakers for an event kindly hosted at BLM LLP in London, entitled "An Environmental Court After Brexit?"
- Hon Justice Brian Preston SC of the New South Wales Land & Environmental Court discussed his recent paper, 'Characteristics of successful environmental courts and tribunals'.
- Mary Creagh MP, Chair of the Environment Audit Committee, spoke broadly about the challenges of Brexit for the environment and the role an environmental court could play post Brexit.
- Gregory Jones QC of Francis Taylor Building gave a Practitioner's perspective
- Michael Salau, Partner and Head of Environment, BLM Law, gave closing remarks.
The event was well attended and provoked an engaging discussion.
We have also recently welcomed David Hart QC of 1 Crown Office Row as a guest speaker. David's environmental work covers the whole range of issues - litigious, regulatory, planning, public law, criminal and transactional work – over all subject areas including water, waste, air, odour, noise, fishing, and windfarms. He also has a wide contaminated land practice, and he has appeared in courts at all levels, including the European Court of Justice, the House of Lords and the Supreme Court. He also appears in the criminal courts on environmental matters.
During our WP meeting, we discussed the response to the Environment Agency’s consultation on its proposed changes to its current Enforcement Sanctions and Guidance and we had joining us a representative from the Environment Agency.
2015 meetings included:
- a presentation by Chris Hopkins barrister from No 5 Chambers about hot environmental issues, on 11 November at CMS Cameron McKenna's London offices;
- a joint meeting with the water working party on the topic of fracking and water contamination, held at the annual UKELA conference in Liverpool, on 4 July;
- an update by Chris Badger of Six Pump Court on recent litigation developments and trends, on 21 April.
The Working Party is taking an active interest in the following areas:
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: see our correspondence with the government on this issue.
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.