Aarhus for real beginners

aarhus

Aarhus seems to seep into cases everywhere, so I thought it was about time to start from scratch. 

1. What is Aarhus? Denmark’s second city. You can write it like Århus, if you want a bit more Jutland cred. Ryanair fly there-ish (45km away).

2. How do you say it? Something like Orr-hoose: Danes, any better transliteration?

3. Why do lawyers go on about it? Because the UN-ECE Aarhus Convention was signed there in 1998. It came into force on 30 October 2001.

4. UN-ECE? United Nations Economic Commission for Europe, a regional organisation made under Article 68 of the UN Charter

5. What is the Convention about? 3 things (or pillars, in treaty-argot).

  • Access to environmental information
  • public participation in environmental decision-making, and
  • access to justice in environmental matters.

6. Is the UK signed up? Yes, founder member. It ratified it in 2005, when the EU did.

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Why Mrs Litvinenko did not get her PCO – but what if it had been an environmental claim?

Marina LitvinenkoR (on the application of LITVINENKO) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2013) QBD (Admin)  4 October 2013, judgment behind Lawtel paywall       UPDATED x 2 

An extraordinary story which would have raised our eyebrows at its implausibility had it come from our spy novelists. In late 2006, Alexander Litvinenko was murdered by polonium-210 given to him in London. He was an ex-Russian Federation FSB agent, but by then was a UK citizen. He had accused Putin of the murder of the journalist Anna Politovskaya. He may or may not have been working for MI6 at the time of his death. The prime suspects for the killing are in Russia, not willing to help the UK with its inquiries. But rightly, in one form or another, we want to know what really happened.

Not entirely surprisingly, Marina Litvinenko said that her husband had been murdered on orders from the Russian Federation. An inquest started, though the UK Government said that much of what the coroner wanted to inquire was off limits because covered by public interest immunity. In the light of this stance, the coroner, Sir Robert Owen, a senior high court judge, had said that any investigation into Litvinenko’s death could only be adequately carried out by a public inquiry. The secretary of state refused to order such an inquiry, saying that it could take place after the inquest if necessary. The inquest continues, but it can therefore only look at part of the story.

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Aarhus, the A-G, and why the rules on interim remedies need to change

SheernessCommission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 

I did an initial post here summarising this opinion from the A-G to the CJEU saying that the UK was in breach of two EU Directives about environmental assessment and pollution control – the breaches concerned our system for litigation costs. It struck me that there was a lot in the opinion, and after some re-reads, I continue to think so. So I will deal in this post with one aspect, namely the finding that the UK is in breach, in requiring an undertaking as to damages by the claimant to back up the claimant’s interim injunction – in the jargon, a cross-undertaking. 

We are back on the well-trodden path of the UN-ECE Aarhus Convention to which the EU has subscribed. Article 9(4) requires that there be review procedures in environmental cases which shall provide “adequate and effective remedies including injunctive relief as appropriate, and be fair, timely and not prohibitively expensive.” And a requirement for a cross-undertaking, the A-G concluded, infringed that provision.

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Judge quashes “exclusive” golf course decision- and why we need judicial review

22-ep-cherkley-court-2-W1200Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Haddon-Cave J, 22 August 2013 read judgment

This is a successful judicial review of the grant of planning permission to a proposed new golf club in leafy Surrey – where one central issue was whether, in planning policy terms, there was a “need” for the club. The local planning officers had advised the council against the proposal, but the members voted in favour of it (just), hence this challenge. It succeeded on grounds including perversity, which is pretty rare, especially in the planning context, but, when one looks at the judgment, you can readily see why the judge concluded as he did. 

The judgment contains some pungently expressed reminders that the planning system is not just about facilitating “business” but requires a proper assessment of the public interest. And dressing up the provision of very very expensive golf to a few very very rich people as “need” does not wash.

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What is a “public authority” for the purposes of environmental information?

water_tapFish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon

In this most recent case concerning access by private individuals to environmental information held by public authorities,  the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had  been addressed to private companies which manage a public service relating to the environment.  The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).

Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law. Continue reading

Aarhus: UK seems to be in trouble again, this time with the CJEU

julianekokott-300x192Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 

“It is well known that in United Kingdom court proceedings are not cheap” – a masterly understatement opening this opinion from our pictured AG to the CJEU about whether the UK system on legal costs complies with the obligation now in two EU Directives about environmental assessment and pollution control. The AG thinks that our way of doing costs is not up to scratch – with the origin of this obligation to be found in  the UN-ECE Aarhus Convention to which the EU has subscribed (albeit abstemiously when the EU comes to its own affairs – funny that). 

Bit of context – the EU has been warning the UK about costs for some years, with formal warnings going back to 2007 – and the Aarhus Convention Compliance Committee has been doing likewise from Geneva. But the EU courts are more scary – all the ACCC can do is wrap the odd knuckle. And on this topic, we have one individual case which has been to the CJEU (Edwards, where the UK does not look in good shape - see my post), and now this case saying that the UK has a systemic problem with excessive costs.

But one thing we must remember. The law according to the AG looks at the law before the UK had a go at sorting the problem out – see my post, as above. on the new UK regime. There is some important stuff about how the old system did not comply, which will have implications for the new rules.

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Aarhus watch: a UK breach, and a fudge

023stirling1DM_468x312ACCC/C/2012/68 read draft findings here and ACCC/C/2010/45 read findings here

Two interesting decisions from the Geneva-based Aarhus Convention Compliance Committee (ACCC) about whether the UK planning system complies with the UN-ECE Aarhus Convention.

The first was given excellent recent coverage in the Independent – a Scottish wind farm case where UK plans for renewable energy had not received the public consultation which Article 7 of the Convention required. The second, which promised much (see my previous post), ducked the issues in a rather unsatisfactory way.

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HS2 challenges fail but powerful dissent

_65547471_65547470R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal - read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

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Permission to amend after expiry of time limits – and an unfair hearing

dunmow-map-alldev2Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, Court of Appeal, 18 June 2013read judgment

There is a curious if not bizarre set of anomalies about planning and environmental challenges. Where they involve an attack on a decision by the Secretary of State (typically in respect of a decision by a planning inspector after inquiry), the route is via section 288 of the Town & Country Planning Act 1990. There is a strict 6 week time limit, with no discretion to extend – but no need for permission to apply as in judicial review. But where there is a challenge to any other decision, the time limit (at the moment) is 3 months, with discretion to extend – but also a discretion to disallow if the application was not “prompt” even within the 3 months  (see my post on this last point) and the permission hurdle to clear.

Yet in each case the substantive grounds are effectively the same – but to what extent should procedures differ other than those required by the statutory underpinning?

The conundrum in this case was – what to do about a set of grounds (drafted by lawyers)  filed after the s.288 time limit, in substitution for grounds (by the clients doing it themselves) filed within the 6 weeks.

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Sea fishing, quotas and A1P1: “no-one owns the sea”

carouselThe UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J,  10 July 2013  read judgment 

Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length –  Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.

The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.

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So we cannot see Prince Charles’ advocacy letters after all

Prince CharlesR (o.t.a Rob Evans) v. Attorney-General,  Information Commissioner Interested Party, 9 July 2013 – read judgment

As we all know, the Prince of Wales has his own opinions. And he has shared those opinions with various government departments. Our claimant, a Guardian journalist, thought it would be interesting and important for the rest of us to see those opinions. So he made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents.

No joy, says the Administrative Court. Yes, a tribunal had ordered production of the letters, but that order had been overridden by the Attorney-General. What, says anybody used to the idea that courts do their bit, and the government does its bit – that’s unfair, government cannot override what the courts say.

The complication, as we shall see, is that the override is built into FOIA.

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Public interest environmental litigation in Strasbourg

zimbabwe_environmental_law_association_(zela)Public Interest Environmental Litigation and the European Court of Human Rights: No love at first sight, by Riccardo Pavoni – read article 

Thanks to this link on the ECHR blog, a fascinating account of the twists and turns of Strasbourg environmental case law from Professor Pavoni, of the University of Siena. It is 30 closely-argued pages, so I shall try and give a flavour of the debates Pavoni covers, as well as chucking in my own penn’orth. 

The starting point, as I see it, is that public interest environmental litigation is a square peg in the round hole of Strasbourg case law. The Convention and the case law are concerned with victims of human rights abuses. Environmental degradation affects everyone, but not necessarily in a way which makes them a a Strasbourg victim. Take loss of biodiversity, say the decline in UK songbirds, or the peace of a remote moorland affected by 150m high wind turbines. Who is the potential victim in those cases when judged by human rights? Pavoni argues that if the Strasbourg Court were to assert jurisdiction over environmental cases as a common good, alongside adverse impacts on private victims, this would not result in a major overhaul of the Court’s current principles – not too much expansion of the hole needed to fit the square peg in snugly. How does he reach that position?

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The Chagossian Wikileaks cable judgment, fishing rights and a dose of EU law

330px-ChagosmapBancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 11 June 2013 read judgment

The Divisional Court has now dismissed  the claim by Mr Bancoult on behalf of the Chagossian islanders. He had challenged the designation of the waters around the islands as a “no take” Marine Protected Area, i.e. one which could not be fished. 

Mr Bancoult said that the decision was flawed (i) by having an improper purpose (it would put paid to the Chagossians’ claims for resettlement); (ii) by inadequate consultation and (iii) by amounting to a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.

The case has, to say the least, quite a back-story. It started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s,  on which I have posted here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the Foreign Office accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

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Incomplete information and the right to know: Climategate’s long tail

ImageVaultHandler.aspxStephen McIntyre v Information Commissioner (Environmental Information Regulations 2004) [2013] UKFTT 156 (17 May 2013) – read judgment and [2013] UKFTT 51 (7 May 2013) read judgment

These are the latest in a series of  freedom of information requests for disclosure of material from the UEA’s Climatic Research Unit (CRU).  These requests arose following the ‘climategate’ affair where hacked university emails suggested that individuals within CRU might have attempted to abuse the process of peer review to prevent publication of opposing research papers and evidence. Hence the sensitivity of the data to both requester and CRU, and the passions engendered on these appeals.

Both cases turned on whether disclosure could be denied on the basis of the public interest exception to the default rule that information should be disclosed, in other words the chilling effect on sharing ideas and unpublished research, and the potential distortion of public debate by the disclosure of incomplete material.  Continue reading

Who “holds” the working papers of the Climategate inquiry?

emailgate_mockup_k_SMLHolland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013  - read judgment

In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.

UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER  concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information. 

This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them.  UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.

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