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A threat to environmental justice

Barrister Gethin Thomas reports on committee stage consideration of the Judicial Review & Courts Bill, highlighting the impact that clause 1 could have on access to environmental justice.

January 2022

Clause 1 of the controversial Judicial Review and Courts Bill (“the Bill”) threatens to disturb fundamental and longstanding principles governing the grant of a remedy where a court finds that a public body acted unlawfully. Judicial review is a critical route to redress against unlawful public decisions that impact the environment. The Bill was recently considered by the Public Bill Committee of the House of Commons, and is due to progress to the Report Stage shortly.

Currently, in a judicial review claim, the grant or refusal of a remedy is ultimately discretionary (see Inland Revenue Commissioners v National Federation of Self- Employed and Small Businesses Ltd [1982] AC 617, 656 per Lord Roskill). The court has a wide discretion to determine what it is fair and just to do in a particular case (see Credit Suisse v Allerdale BC [1997] Q.B. 306, at 355 per Hobhouse LJ). 

A quashing order is the primary and often the most appropriate remedy (see Cocks v Thanet DC [1983] 2 A.C. 286, 295 per Lord Bridge). A quashing order renders the impugned decision as a nullity, which means that it is treated as never having been made at all. In other words, a quashing order has both retrospective and prospective effect. In most cases in which a decision has been found to be flawed, it would not be a proper exercise of the remedial discretion to refuse to quash it (see R. on the application of Edwards) v Environment Agency (No.2) [2008] UKHL 22, para 63)

However clause 1 of the Bill would insert a new section 29A into the Senior Courts Act 1981, which would explicitly empower the courts to make:
a. a suspended quashing order for the quashing not to take effect until a date specified in the order, and;
b. a prospective-only quashing order removing or limiting any retrospective effect of the quashing.

In deciding whether to make a suspended or prospectively-only quashing order, under draft subsection 29A(8), the court would be obliged to have regard to a series of specific factors, including: (i) any detriment to good administration that would result from exercising or failing to exercise the power and (ii) the interests or expectations of persons who have relied on the impugned act.

Critically, the draft new subsection 29A(9) would establish the following presumption: if the court is making a quashing order, the court must use the new remedial powers in subsection (1) in circumstances where it appears to the court, as a matter of substance, that the use of the provisions would offer adequate redress in relation to the relevant defect, unless there is good reason not to do so. In short, the court is directed to make a suspended or prospective only quashing order.

If implemented, clause 1 could have several detrimental impacts on the effectiveness of successful judicial review challenges to unlawful decisions which damage the environment. These have been widely analysed in briefings from Link, Client Earth and the Public Law Project. In particular, the presumption in favour of a suspended or prospective quashing order would lead to environmentally harmful conduct being allowed to persist after a successful challenge (potentially even indefinitely), despite an unlawful basis.

Notably, James Cartlidge MP, the Parliamentary Under Secretary of State, explained the intention underlying the presumption as follows:

The presumption also plays another important role in ensuring that the principles and practice around the new remedies are developed quickly. Jurisprudence can be a slow-moving beast, and the presumption will expedite the process and bring greater legal certainty. While removing the presumption from the Bill would not necessarily prevent the new modifications to quashing orders from operating effectively, we continue to believe that there is merit in providing this indication to the courts that they should properly consider the use of the new remedial options available to them, and to develop the case law as to their usage more quickly.

Notwithstanding that, arguably, adequate legal certainty as to common law principles can be afforded by guidance being provided by a single judge, in a single case (and multiple judgments on a single issue do not necessarily trend towards legal certainty), the argument put on behalf of the government makes plain the intention that the new remedial options be used frequently.

However, as observed by leading academics Dr Jonathan Morgan and Professor David Feldman in their evidence session during the committee stage, the senior judges who will be making decisions about which remedy to employ can simply be trusted to make the appropriate decision based on the facts of the particular case. The courts are capable of making such judgments for themselves, and have already developed a body of sophisticated and longstanding jurisprudence. A presumption is entirely unnecessary.

Moreover, the direction to specifically consider the interests of the parties who relied upon the unlawful decision could lead to those interests being given undue weight, as against the public interest in protecting the environment. Indeed, in the context of environmental challenges, there is wide scope for the interests or expectations of persons who have relied on the impugned act to be severely prejudiced, in particular, parties with the benefit of planning or environmental permits. Prejudice to such parties is caused not by the judicial review challenge, but the unlawfulness against which such challenges are brought. Accordingly, such impugned decisions are, in the main, quashed (See, for a recent example: R (on the application of Save Stonehenge World Heritage Site Limited) v Secretary of State for Transport and ors [2021] EWHC 2161).

The real-world impact is readily contemplated. For example, if a permit for a new coal mine was granted on an unlawful basis, but the court decided to suspend a quashing order, the mine would be able to continue to operate notwithstanding its illegality. Equally, by way of a further example, if a consent to build a road was unlawfully granted which would destroy an internationally significant habitat, and a quashing order suspended or made prospective-only, the operator may be able to continue to rely on the consent, risking the destruction of the habitat. A decision which is not quashed continues to have legal effect. The harm caused to the environment during the period of suspension, or prior to the prospective-quashing order being triggered, would not be reversible.

If clause 1 of the Judicial Review Bill goes through without amendment, unlawful damage to the environment could be allowed to stand.

At the recent committee stage, the Bill received a decidedly mixed reception. Andy Slaughter MP tabled several amendments to clause 1. One of Mr  Slaughter’s amendments would have removed clause 1 entirely, which was supported by the Wildlife and Countryside Link (Link's committee stage briefing for the Bill can be found here). However, this amendment was not called in the committee stage. Other, more discrete, amendments sought alternatively to blunt the assault of clause 1 on judicial discretion. Regrettably, these amendments were either negated on division, withdrawn after debate, or not called, meaning that none succeeded.

Accordingly, clause 1 proceeds to the next stage of the parliamentary process, the report stage, intact. There are, however, further attempts afoot to ameliorate its adverse impacts. In particular, Wera Hobhouse MP has tabled amendments of clause 1, which would, among other things, remove the presumption contained in the draft subsection 29A(9). There are therefore still opportunities for the most egregious elements of clause 1 to be remedied.

Gethin Thomas is a barrister at 39 Essex Chambers

The opinions expressed in this blog are the author's and not necessarily those of the wider Link membership.