Even beyond the headlines, the rule of law is being eroded in Europe

James Thornton is the CEO of ClientEarth, and author (with Martin Goodman) of ‘Client Earth: Building an Ecological Civilization’

It is easy to be complacent about the rule of law in Europe. European democracies are well-founded and long-established, and the European Union has added an overarching legal regime to a growing family of member states.

But our complacency may allow the rule of law to erode. We risk it slipping away unremarked, noticing only what it is too late.

Poland and Hungary grab the headlines. But let us look at two examples where the rule of law is being challenged in the field of the environment, and both involving access to courts: one example is at EU level, and one in the UK.

First, the EU. The European Commission takes the position that the EU is above international law. All of its member states, and the EU itself, have signed an international treaty called the Aarhus Convention, which ensures access to justice for citizens in environmental matters.

The Commission has been forceful in taking the position that the EU’s constituent states guarantee such rights to their citizens. The problem is that the EU does not apply the same standard to itself, even though it agreed to do so when it signed the Convention.

This matter is no academic quibble. There is a regime of law created at EU level that binds the EU institutions. Take fisheries as an example. The common fisheries policy, agreed by all member states, gives the EU the power to set quotas for catching fish in European waters. Along with this power comes a duty: the quotas must be set in accordance with the recommendations of a scientific advisory body, which determines the sustainable catch.

What happens when the EU violates its own law? Suppose it sets fishing quotas too high, in contravention of the law: citizens cannot challenge the EU in the courts of member states, since the EU will not consent to appear in their courts. Can citizens go to the EU’s own court to challenge the quota as illegal?

The European Court of Justice has always said no. Companies are allowed to challenge the EU to protect their own economic interests, but the public interest in holding the EU to its own laws in environmental matters has never been upheld, no matter the environmental issue.

The Aarhus Compliance Committee in March decided that this behaviour of the Court violates the Convention’s guarantee of access to justice. It was a clear and correct decision. The next step is for the EU to accept the finding and change its behaviour. It must open its courts to citizens.

Since 2002 every government has accepted the decisions of the Compliance Committee and modified its conduct. The scandalous thing is that the Commission is refusing. It is taking the position that it is above international law and that it alone may close its courts to citizens who seek to test the legality of its conduct.

Unless it modifies its stance, Europe will create a grievous wound in the rule of law. Why should any country conform to the Convention if Europe refuses?

Giving access to justice is always inconvenient. If you are in power, you might be ordered by a court to behave differently. Citizens are pesky when they assert their rights. They create more office work in Brussels. But without such a check we do not have a fully functioning democracy.

If Europe, when called out, does not give the right of access to justice that it promised, why would anyone trust it? How is breaking international law by refusing access to the courts not demagoguery by committee? And why is Europe so afraid of its citizens testing European law that it must crudely attack the rule of law itself?

It doesn’t help the EU’s credibility that it relies on bold misrepresentation to justify its position. It claims that citizens will flood its courts with cases requiring an army of expensive new bureaucrats, all to be paid for by the member states. But its own recent study shows that the number of cases will be small and manageable, particularly since it doubled the number of judges on its lower court just last year.

Perfecting an insolent isolation from review will gain the EU no friends among its citizens at a time when it needs their respect.

The second example comes from the UK, which has a long tradition of injustice when it comes to access to the courts in environmental cases. So high was the cost of going to court that citizens could not afford to defend their environmental rights.

The UK’s ancient rule that the loser pays all costs, coupled with extremely high fees for lawyers, means that if you went to court and lost, you might end up bankrupt.

This rule may deter frivolous cases seeking private gain. But a case in the public interest is a different matter. Such cases are a modern invention, in which the plaintiff seeks not his own gain but the public good. A case for clean air seeks no benefit except that which is shared with the rest of the public. The British rule exposed the plaintiff to exorbitant costs if they lost a public interest case. Few cases were brought.

After the UK signed the Aarhus Convention, several elements came together to change the UK’s rule. These included modification in the cost regime by common law courts, and a decision against the UK on costs in the Aarhus Compliance Committee. What evolved was a rule that capped costs. A person bringing an environmental case would be exposed to pay £5,000 to the other side if he lost; an environmental group £10,000. While this represented higher risk for public interest plaintiffs than in other European countries, it was nevertheless a great improvement.

In a stealthy change, the UK has now passed a rule saying the court may modify the caps at any time during a case. In other words, near the end of a case, the court could lift the cap entirely, exposing the plaintiff to unlimited costs. This is the unjust old rule in new clothing.

The Royal Society for the Protection of Birds and Friends of the Earth joined ClientEarth in a case to challenge this mischievous new rule. We will see what the courts do with this challenge.

Should the rule stand, it will be particularly troubling at a time when the UK is preparing to leave the EU. Once out, the European Commission will no longer be able to hold the UK to the law. Only citizens, by going to court, will be able to bring the government back in line when it deviates from lawful action. By stealthy closure of its courts to citizens, the UK government seeks to achieve the same insolent isolation from review that the EU proclaims for itself.

There are high-profile concerns about the rule of law across Europe. But there is also gentle erosion. We must keep a systematic focus on the rule of law, and take concerted action to defend it, even in Europe, if we care about the environment and participatory democracy.

This article was first published in Europe’s World print issue number 35. Read more on the issue and order your copy here.