Access to Court Decisions and the Aarhus Convention
Article 9 of the Aarhus Convention governs access to justice in environmental matters. Essentially, it sets down minimum standards for access to justice including, for example, standing, review procedures and costs.
Article 9(4) provides, inter alia, that decisions under Article 9 “shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”
It is clear, therefore, that court decisions in cases falling within the scope of Article 9 must be given and recorded “in writing” and these decisions must be “publicly accessible.”
In many cases, the High Court and the Supreme Court deliver written, reasoned judgments and these judgments are usually published on the Courts Service website: http://www.courts.ie/
In practice, however, it is not uncommon for courts to deliver ex tempore rulings where no written judgment is prepared, for example the court’s decision on the question of liability for the costs of proceedings. There is currently considerable interest in the question of costs in environmental matters. This is because special costs rules have been introduced for certain categories of environmental litigation (section 50B Planning and Development Act 2000 as amended and Part 2 Environment (Miscellaneous Provisions) Act 2011) with a view to meeting Aarhus and EU law obligations. The special costs rules have been interpreted and applied in a number of cases to date and these rulings provide essential guidance as to how the special costs rules are operating in practice.
Ireland recently submitted its first Aarhus Convention National Implementation Report 2014 to the United Nations. Preparation of this report involved a public consultation on a draft text. All submissions received as part of this consultation were published on the Department of Environment, Community and Local Government (DECLG) website. The content of the submission from the Department of Justice and Equality raised an important issue regarding the accessibility of certain court decisions. This submission states, in relevant part (my emphasis):
“In cases where the court does not deliver a considered, written judgment the decision of the court is recorded in a court order which is available only to the parties to the case.”
It follows from this unambiguous statement that ex tempore court decisions, where there is no written judgment, are not publicly accessible.
This state of affairs is a clear breach of the express requirement in Article 9(4) that court decisions in Aarhus cases must be publicly accessible.
Now that this issue has been highlighted, it is hoped that both the Department of Justice and Equality and the Courts Service will take urgent steps to ensure that all court decisions in Aarhus matters are published on the Courts Service website.
On a related point, in practice, there can be a considerable delay in some cases between when a judgment is delivered and when it is published on the Courts Service website. Article 9 does not specify any particular timeframe within which court decisions should be publicly accessible. If the right of access to decisions is to be effective, however, court decisions should be published promptly.
Text of Aarhus Convention: http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf
DECLG Aarhus Convention web pages: http://www.environ.ie/en/Environment/AarhusConvention/
DECLG, Aarhus Convention National Implementation Report 2014: Ireland (December 2013)http://www.environ.ie/en/Publications/Environment/Miscellaneous/FileDownLoad,34986,en.pdf
Text of Department of Justice and Equality submission: http://www.environ.ie/en/Environment/AarhusConvention/PublicConsultations/SubmissionsReceived/FileDownLoad,34989,en.pdf)