The sequel to this Scottish judicial review decision in Sustainable Shetland, (Lady Clark of Calton, read judgment, and my post) is another unedifying example of executive government ignoring courts when it suits them.
In this case, the judge (a former Law Officer in Scotland) quashed the grant of a wind farm consent, for two reasons, the relevant one being that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which was a pre-condition for such an application. Readers will recall that Scottish Ministers had also resisted the highly controversial planning appeal being heard at public inquiry – or the Scottish equivalent.
If you are an ordinary citizen, and you get an adverse judgment, you can only do one thing – appeal it and wait for the decision on appeal. The Scottish Ministers plainly do not like the decision. They have sought to reverse it by a legislative amendment, which did not find favour in the House of Lords. But, rather less attractively, they are simply ignoring the decision pending that appeal on the basis that it is wrong. Judges, rather than ministers, might be thought to be a reasonable judge of that. But the Scottish Ministers think not.
This all emerged because other wind farm cases are proceeding through the system. Those acting for other objectors invited the DPEA (Scotland’s equivalent to the Planning Inspectorate) to stay or “sist” a particular inquiry until the Shetland appeal had been determined – if the judge was right, the wind farmer had no business asking for the consent he wanted. This elicited the following from the Scottish Ministers in a letter of 15 October 2013 (see the last page of this)
Scottish Ministers’ position is that they disagree with, and have appealed, the decision … The decision on the legislative interpretation runs contrary to the established practice relating to the handling of applications for consent which has been in place both north and south of the border for many years … Our intention is therefore to continue to operate in accordance with the practice … and to deal with current applications on that basis.
“In other words, “We will ignore the law”” –
these last not my words, but those of Lord Forsyth (in the Cabinet with John Major) when debating the legislative amendment in the House of Lords.
Why, according to the Scottish Ministers, could the law, as stated by the judge, be ignored?
Scottish Ministers consider that the balance of public and national interest is in favour of continuing with the current approach until the appeal has been determined, in particular because of the need to continue to support the economy and our renewable energy ambitions.
Ah, what government says to be the public interest is, in government’s eyes, capable of overriding the law as declared. Lord Forsyth did not like this declaration of intent either: those “ambitions”
trounce the law of the land
Lord Mackay of Clashfern (former Lord Chancellor, in the days when they were lawyers, and very eminent ones too) thought that Lady Clark was right. So what of the position pending appeal, according to the former LC?
In the mean time, that is the highest assertion of what the law of Scotland is, and, indeed, for that matter, anywhere else where the same rules apply. In the law of Scotland the Supreme Court of Scotland, the Court of Session, has decided that to be the fact. Therefore it is highly undesirable for this House to alter that position at this moment. It seems pretty sensible that before you get consent to erect a power station you should be qualified to operate it.
An assumption that the judges might have got the law right is a rather less overweening place to start for the executive.
In my post on this case, I observed that Grayling’s proposed judicial review reforms would have put paid to this case on standing grounds. People pointed out – entirely correctly – that the proposals did not extend to Scotland. However, it seems as if both Grayling and the Scottish Ministers say the same about how “public interest” can override the law.
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