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Key amendment puts Judicial Review & Courts Bill in better shape, but further requirement needed to ensure unlawful decisions don’t stand

21 April 2022

Welcoming the announcement that the Government has accepted a Lords amendment to the Judicial Review & Courts Bill that preserves judicial discretion, Dr Richard Benwell CEO of Wildlife and Countryside Link, said:

“The Bill included a presumption on judges to issue weaker “prospective” and “suspended” quashing orders, instead of long-established legal remedies that overturn unlawful decisions and halt environmental harm with immediate effect. This presumption would have undermined judicial discretion and potentially allowed environmental damage to continue, even after a judge had ruled a decision as unlawful.”

“The House of Lords rightly removed this presumption, and it is positive that Government has listened to the evidence and accepted the amendment. We thank all the parliamentarians and legal groups who persuaded the Government to improve the Bill.

“The Government should also include a requirement that a full assessment is made of the potential for environmental harm before novel remedies are used that could allow unlawful decisions to stand.”

Where the court finds a decision or act unlawful, use of prospective or suspended quashing orders could fail to prevent environmental damage occurring or continuing. This could potentially allow environmental damage, such as sewage discharges, to continue over a long period of time, with damaging and often irreversible impacts on wildlife and the environment.

ENDS

Notes to editors:

  1. An example of these potential environmental consequences of a suspended quashing order (SQO) can be found in the case R. (on the application of Preston) v Cumbria CC [2019] EWHC 1362 (Admin). A local planning authority's decision permitting the installation of a temporary sewage outfall and extending the period for which it would be permitted was rendered unlawful by its failure to obtain a screening opinion under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, and an "appropriate assessment" under the Conservation of Habitats and Species Regulations 2017. Permission was therefore quashed.
    1. However, if a SQO were applied in the case, there could have been a (potentially significant) period of time between a finding of unlawfulness and the taking effect of the quashing order. Throughout this period, the outfall would have been allowed to continue discharging sewage into the local river system. Every month of continued sewage discharge would have been an extra month of harmful impact on fragile freshwater habitats, and on the health of river users. Indeed, this extension of harmful environmental impacts could lead to irreparable harm. It is possible to envisage a situation where a particular local plant species population might be recoverable after one month of sewage outfall but might not be recoverable after six months of sewage outfall. The local population could be entirely lost, as a result of the prolonging of environmental harms arising from a SQO.
  • The House of Lords removed the presumption from the Bill at report stage on 31 March (Lords amendment 4). The Government’s response to Lords amendments was published on 20 April and does not include disagreement with amendment 4. The Government’s u-turn has been highlighted by Shadow Solicitor General Andy Slaughter MP.
  • Link’s Legal Strategy Group is a coalition of organisations working to improve the creation, implementation and enforcement of English Law so as to better protect the natural environment. The Group has been working with other legal coalitions and experts to improve the Bill and uphold judicial discretion. Link’s briefing for Lords report stage, urging support for the amendment to remove the presumption, can be found here.
  • Wildlife and Countryside Link (Link) is the largest environment and wildlife coalition in England, bringing together 65 organisations to use their strong joint voice for the protection of nature. Our members campaign to conserve, enhance and access our landscapes, animals, plants, habitats, rivers and seas. Together we have the support of over eight million people in the UK and directly protect over 750,000 hectares of land and 800 miles of coastline.