Judge highlight Aarhus Convention’s requirements for access to justice

Press Release - Friends of the Irish Environment 17th July 2020

High Court calls Ireland and the Attorney General into challenge to Legal Aid Board’s refusal to consider aid for environmental charity.

Judge highlight Aarhus Convention’s requirements for access to justice

High Court Justice Niamh Hyland has directed that Ireland and the Attorney General be joined in the proceedings brought by an environmental charity against the Legal Aid Board for its refusal to consider an application for legal aid because the charity was a company and not an individual.

FRIENDS OF THE IRISH ENVIRONMENT
PRESS RELEASE
17 July 2020
IMMEDIATE RELEASE

High Court calls Ireland and the Attorney General into challenge to Legal Aid Board’s refusal to consider aid for environmental charity.
Judge highlight Aarhus Convention’s requirements for access to justice

High Court Justice Niamh Hyland has directed that Ireland and the Attorney General be joined in the proceedings brought by an environmental charity against the Legal Aid Board for its refusal to consider an application for legal aid because the charity was a company and not an individual.

Friends of the Irish Environment [FIE] was established in 1997 and is a company and registered charity that undertakes environmental litigation. FIE sought legal aid for its challenge to the Government’s National Development Plan/ National Planning Framework in 2018 for its failure to meet the State’s climate change obligations.

In a two-day hearing on 30 June and 1 July, FIE argued that under Irish and European law legal aid should be available to both natural and legal persons. The State argued that an interpretation of the relevant Act disclosed a contrary intention, in that the Act was only intended to apply to natural persons. A company is a legal person.

FIE argued that access to civil legal aid is consistent with the objective of the European Charter of Fundamental Rights and the Aarhus Convention in ensuring effective judicial protection and judicial procedures that are not prohibitively expensive.

The Board argued that the Aarhus Convention is not directly effective and is satisfied by the existing Special Costs rules whereby a losing party in environmental proceedings cannot be forced to pay the costs of the other parties. However, other than the possibility of legal aid, litigants have no other support to assist with their own legal costs which are unaffordable for the majority.

At the same time as the Legal Aid Board was arguing that legal aid should not be given to FIE, the Government last year published proposed new cost regime legislation that NGOs claim will further hinder access to the courts and restrict legal representation.

The Legal Aid Board also made the point that the adequacy of the Special Cost rules ‘or any other measures to ensure judicial procedures are not prohibitively expensive was ‘not a matter within the knowledge of the Legal aid Board.’

To determine if the existing measures fulfil the requirements of the Aarhus Convention, Justice Hyland wrote that it, ‘is a matter upon which it appears appropriate to obtain the views of Ireland and the Attorney General’.

The State has been asked to deliver written submission by 23 July 2020 on the following question:

‘Is there an obligation under EU law upon the High Court to interpret the 1995 Act so that the references to “person” therein include legal persons, in order to achieve the objective laid down in Article 9(4) of the Aarhus Convention, namely that the judicial procedures referred to in Article 9 should not be prohibitively expensive?’

After an exchange of papers, a hearing is to be held on 30 July, 2020, subject to Court availability.

FIE is represented by Fred Logue, Solicitor, John Kenny, BL, & Patrick Leonard, SC

Contacts:

COMMENT:
Fred Logue 087 1316023 (solicitor)
Tony Lowes 087 2176316

Judgment:
https://beta.courts.ie/viewer/pdf/3e8422e1-676a-4e3f-bc56-37029af0e416/2020_IEHC_347.pdf/pdf#view=fitH

Back story:
https://www.friendsoftheirishenvironment.org/press-releases/17826-legal-aid-board-refusal-to-fund-environmental-ngo-faces-high-court-challenge

This Press Release:
https://www.friendsoftheirishenvironment.org/press-releases/17835-high-court-calls-ireland-and-the-attorney-general-into-challenge-to-legal-aid-board-s-refusal-to-consider-aid-for...arity

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