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Judicial Review - The Protector of Those without a Voice

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

A consultation paper entitled ‘Judicial Review: Proposals for Further Reform’ has recently closed and within is a proposed change to the rules on standing in Judicial Review proceedings. The consultation suggests four different tests that could be brought forward in legislation to replace the ‘sufficient interest’ test with a more stringent requirement. This change may have extremely damaging consequences for the environment and is driven by a desire to stimulate growth in the economy primarily through the relaxation of planning procedures. It is also a direct assault on the ability of Non-Governmental Organisations (NGOs), including resident’s action groups and organisations such as Greenpeace, to bring challenges against government action.

The current rules on standing, or locus standi, have allowed NGOs to act on behalf of people or in their own right since the Greenpeace decision in 1994. These groups have done exceptional work to challenge government action and expose the flaws in decision-making that have occurred. It is wrong to refer to them, as the Justice Minister did in September of this year in an article in the Daily Mail, as ‘left-wing lobbyists’. An area of the law that could be significantly undermined by the proposed changes is the field of environmental law because of the nature of some of the challenges faced in protecting our natural surroundings. The environment is always in a precarious position when it comes to legal protection because it does not have its own voice and so organisations such as Friends of the Earth or UKELA are extremely important if we are to be able to both maintain a sustainable economy and protect the earth for our future generations. The consultation produced by the government says that one of its key aims is to reduce the number of judicial reviews that are being brought because of fears of an increase in claims made. In fact, 77% of claims brought against the government relate to immigration and asylum which are only brought because of failures of the UKBA to deal with a backlog of almost 150,000 cases (see report by John Vine). A study from the Guardian published in 2011 showed that over the last decade the number of ‘other’ reviews has actually stayed at roughly the same number at 2000 per year (see The Guardian Statistics).

The four proposed tests that would replace a requirement of sufficient interest are as follows:

  1. ‘Direct and individual concern’: this would be in line with the EU test for annulment of an EU action, but the consultation acknowledges that such a test would be too restrictive in such a case as it would be almost impossible to protect the environment on this basis.
  2. Judicial review would only be available if the claimants are, or would be, a victim of an alleged breach of human rights because of a governmental decision or policy. This would be very difficult to fit within an environmental context and would confuse the reason that some actions are brought. Such a test might also breach the government’s obligations under the Aarhus Convention, which secures general rights of public participation and access to justice. The motives of the government might not even be fulfilled by such a test as Strasbourg have decided that some NGOs have standing to bring a claim under this test (see L’Erabilere v Belgium; Collectiv Stop Melox et Melox (75218/01)) and would cause unnecessary confusion.
  3. The ‘person aggrieved’ test used in planning decisions. This test is very specific to planning law and comes at the second stage of a planning inquiry and requires anyone who wishes to appeal against a decision to have been involved in the initial stage. Such a requirement does not seem to fit squarely within a judicial review framework. It would certainly restrict the ability of an NGO and others to bring an action as they would have to have been involved in the initial government decision to be able to challenge it. Again, this test conflicts with the Aarhus Convention which seeks to promote access to justice and would possibly have an adverse effect to the government’s intentions by raising the profile of the Convention and forcing the government to involve the public more in public participation. This would slow down the process of governmental decision-making.
  4. The current legal aid test of a requirement for ‘the potential to produce a benefit for the individual, a member of the individual’s family or the environment’. Although this seems initially appealing as it has a clear focus on the environment, it would do nothing to reduce numbers of claims or alter any attitudes towards litigation that currently exist.

Applying these tests to a fictional example, the government gives a permit to a company in Gloucestershire to operate a factory that was partially powered by burning car tyres. A local environmental action group is set up in order to bring a claim that may affect people’s health in the area. Under the current rules, the group would likely have a ‘sufficient interest’ but the picture is far from clear under the new tests.

  1. The ‘direct and individual concern’ test would probably mean the group did not have standing as all members would have to prove that there was a direct impact of the permit on the members of this group by the factory.
  2. This test would not allow standing either, as there would be no human rights violation on behalf of the government.
  3. The ‘person aggrieved’ test is also likely to fail because the group would have had to be involved at the initial stage of planning and permitting.
  4. The fourth test would likely allow the group to bring a claim but as outlined above, there would be no merit in altering the rules in favour of this test because it provides no benefit.

In fact, the case of Rose Theatre Trust clearly shows that in some instances these local groups may not even fulfil the sufficient interest test when challenging government decisions, so there are already controls in place to prevent frivolous claims. A change to a more stringent test could be devastating not only to the environment, but also to the future policy decisions of government if they are allowed to make decisions without having to worry about judicial challenge.

The government generally uses two cases in order to demonstrate their point about ‘left-wing lobbyists’ “trying to halt progress and cause mischief”. It is important to note at the outset that the government actually lost both cases and their action was declared illegal. I find it confusing that they would seek to try to back up their arguments with instances where they were proven to be at fault and acting beyond their powers.

The first case is actually from as far back as 1994, given that there are 2000 relevant judicial review applications per year that would mean that since this there have been 16,000 cases not worthy of comment or outrage. It concerned a government decision to grant funding to the Malaysian government to build the Pergau dam. The government lost the case as the courts decided that the funding was outside the powers afforded by statute. Had it not been for the World Development Movement, an NGO that brought the claim, millions of pounds would have been given in funding to the Malaysian government that was beyond what was authorised by Parliament.

The second, from 2010 concerning the handing over of prisoners to Afghan forces, is a case that was also lost by the government.

If the government are worried about the risk of being challenged in the courts then they should work harder to review their decision-making process and ensure it complies with all formalities and takes into account relevant considerations. The answer is not to deny the possibility of challenge and thus undermine the rule of law. A law without scrutiny commands no respect and unchecked power is inherently dangerous.

I believe that the government proposals are entirely motivated by the desire to give a wider-ranging ability to the government to devalue the protection of the environment and thereby stimulate growth in the economy. Such a move will destroy the vital balance between the environment and growth that should underpin all economic government action. A further change which is raised in the consultation is the removal of Legal Aid to people challenging decisions under s288 and 289 of the Town and Country Planning Act. One cannot go a week without a cabinet minister stressing the need for growth or the need to ‘cut red tape’ and indeed even the Justice Minister is guilty of such rhetoric. The recent piece in the Daily Mail confirms this as Mr Grayling outlined his vision to reduce availability of review on a wholesale basis in order to help Britain’s position in the ‘global race’. The result of giving government the power to make almost unchallengeable decisions would undoubtedly put pressure on lower socio-economic groups. This is because they would lack the requisite knowledge to bring challenges and the prohibitive cost of legal fees would mean the case was never brought.

There have been several responses to the consultation, UKELA, the UK Environmental Lawyers Association provided a very comprehensive response and it is worth reading to highlight some of their major concerns. As pointed out within, some of the questions present a problem which simply is not experienced in the real world, such as fears about claims being brought to impede government decision-making because of ‘minor procedural defects’. It is unclear what these defects could be, but such claims would not usually be entertained by the courts and as UKELA point out, there are no instances that they know of such claims being brought.

Judicial review is a cornerstone of the UK constitution, and is a vital tool in holding the executive to account. It is one of the few ways to challenge decisions made by government that can have stark effects on the environment and by restricting claims there is a real fear that the environment will suffer. The government’s apparent motivations for changing the rules relating to judicial review are not enough to warrant a wholesale alteration of the rules on standing, although other changes relating to Protective Cost Orders are welcome.

Further Reading

UKELA, ‘Response to the Ministry of Justice consultation on proposals for further’.

Chris Grayling, Daily Mail, ‘The judicial review system is not a promotional tool for countless Left-wing campaigners’.

Owen Bowcott, The Guardian, ‘Britain's most senior judge attacks judicial review curbs’.

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Tagged: Constitution, Environmental Law, Judicial Review

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