Standing and discretion – who acts for ospreys?

19 October 2012 by

Walton v. The Scottish Ministers, Supreme Court, 17 October 2012 read judgment

The outcome of this challenge to a road scheme near Aberdeen turned on abstruse points about environmental assessment – but the speeches from the Justices go right to the heart of two big questions in public law.

1. When can someone challenge an unlawful act – when do they have “standing” to do so?

2. If an unlawfulness is established, when can the courts exercise their discretion not to quash the unlawful act, particularly where the unlawfulness arises under EU law?

In the course of the standing issue Lord Hope talks about ospreys – hence my title, but a bit more context first. And we shall also see the views of the Court that standing and discretion are linked questions.

Mr Walton lived in the vicinity of this proposed road scheme. The broad nature of the scheme (the Modern Transport System or MTS) was formulated by a non-statutory partnership called NESTRANS, a group of local and other authorities. The Minister for Transport proposed a revised route (incorporating a new element, known as Fastlink) within a specified corridor, and then narrowed things down to a preferred line within that corridor. The last was put forward in a draft order, receiving 10,000 letters of objection. The Minister announced and held a public inquiry. The particular route was subject to environmental assessment. But the inquiry was specifically set up to exclude consideration of the underlying policy decision to proceed with the road. Mr Walton and his organisation, Road Sense, appeared at inquiry. The upshot of the inquiry was to confirm the Ministers’ proposals.

Mr Walton challenged this decision, by way of a statutory appeal, which could only be brought by a “person aggrieved” – a term of art. The challenge failed at first instance, before the Lord Ordinary, and on appeal, before the Inner House. In ruling against Mr Walton, the Inner House ruled that he was not a person aggrieved, and had no standing to sue. By the time the matter came before the Supreme Court, Mr Walton was concentrating on his argument that the Fastlink was a plan or programme which needed Strategic Environmental Assessment under the EU Directive of that name – in the absence of such assessment, it was unlawful. He also said that the procedure adopted at inquiry was unfair at common law, because of the limited nature of its terms of reference.

The Supreme Court unanimously agreed with the courts below. In short, it said that adopting Fastlink was not the modification of a plan or programme falling within the SEA Directive, and the procedure adopted at inquiry was not unfair at common law.

Now, for those not fascinated by the intricacies of Environmental Impact Assessment and SEA, to the bits of wider interest. All these are technically “obiter”, or not necessary for the decision on the SEA point, but are nonetheless of considerable importance.

Standing

The Supreme Court in three substantive judgments made it plain that they could not agree with the Inner House’s view that Mr Walton did not have standing. The express provision (about “person aggrieved”) is a statutory one, but the Justices were at pains to see that result against the background of the similar issue as to whether a claimant had sufficient interest to mount a challenge by way of judicial review, and further to align the results under Scottish law on both issues, with the far more relaxed attitude to standing adopted by English lawyers in the last 20 years or so. Mr Walton was a person aggrieved, they said, because he had appeared at inquiry, and lost; he was chair of a local organisation formed specifically to oppose the road scheme. So he could bring proceedings.

After citing a previous Supreme Court case on a challenge to legislation about asbestosis (see my post here), Lord Reed said this

In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.

When we get to Lord Hope on standing in judicial review, cue the osprey. In an elegant summary of one of the key principles of environmental law at [152], he explained

An individual may be personally affected in his private interests by the environmental issues to which an application for planning permission may give rise. Noise and disturbance to the visual amenity of his property are some obvious examples. But some environmental issues that can properly be raised by an individual are not of that character. Take, for example, the risk that a route used by an osprey as it moves to and from a favourite fishing loch will be impeded by the proposed erection across it of a cluster of wind turbines. Does the fact that this proposal cannot reasonably be said to affect any individual’s property rights or interests mean that it is not open to an individual to challenge the proposed development on this ground? That would seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone. The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf.

So nature may not have rights. But we have a right to stand up for it.

Discretion in EU cases

For some years, and based upon the Berkeley case involving environmental impact assessment, it was thought that there was a very limited discretion in a court not to quash a decision where the unlawfulness arose under EU law. It was thought that this flowed from the EU principle of “effectiveness” – namely that domestic procedures (about quashing and the like) should not render impossible or excessively difficult the exercise of rights conferred by EU law. Lord Carnwath charted his way in [124]-[140] through both domestic and EU cases to demonstrate that the principle of effectiveness did not constrain domestic courts in such a way; they would not have to quash a decision involving EU law where they thought that the breach had not caused substantial prejudice. Interestingly, he did so even in the face of a part concession by counsel for the Scottish Ministers on this score. And he was not alone. Lord Hope expressly agreed with this analysis: [155]. Lords Kerr and Dyson agreed with Lord Carnwath’s speech. Lord Reed was more cautious – he thought that the issue required fuller consideration, in the light of specific Scottish legislation, including the Scotland Act: [77]-[79].

Standing and discretion

Traditionally, once a litigant has cleared the standing hurdle, people thought that was the end of it. The question of remedies was a free-floating question – either the unlawfulness was such as warranted quashing of the decision, or it was not. But the Supreme Court has now said that this is not right. Hence, Lord Reed at [95]

At the same time, the interest of the particular applicant is not merely a threshold issue, which ceases to be material once the requirement of standing has been satisfied: it may also bear upon the court’s exercise of its discretion as to the remedy, if any, which it should grant in the event that the challenge is well-founded.

He went on to agree with Lord Carnwath at [104] – though I think this may have been intended to be a reference to [103] where the latter said:

I will however add a few words of my own on the issue of discretion, which in practice may be closely linked with that of standing, and may be important in maintaining the overall balance of public interest in appropriate cases (see, for example, R v Monopolies and Mergers Commission, ex p Argyll Group plc [1986] 1 WLR 763, 774-775). In this respect, I see discretion to some extent as a necessary counterbalance to the widening of rules of standing. The courts may properly accept as “aggrieved”, or as having a “sufficient interest” those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment. However, if it does so, it is important that those interests should be seen not in isolation, but rather in the context of the many other interests, public and private, which are in play in relation to a major scheme such as the AWPR.

This may broaden the arguments on discretion considerably, and may concentrate more attention on standing arguments in English courts, given the inter-connection, even if they are not used as knock-out blows against claimants. Not only are all the public benefits of the scheme proceeding put into play but also these have to be weighed up against the very specific detriment suffered as a result of the particular breach of process, and the individual’s involvement. One can readily understand the rationale for this – why should a defect on process lead to significant delays in an already much-delayed scheme – as in this case? But there will be other circumstances in which the claimant can say with some force – this is not a decision for the court to take; the court’s job on judicial review is to assess the lawfulness of the procedure adopted. If the procedure has gone unlawfully wrong, it is for the Minister, not the court, to come up with the answer after going through the right procedure – and the fact that I am only involved in a limited way is neither here nor there.

Aarhus afterword

The Aarhus Convention usually surfaces in claimants’ arguments. But here it went the other way. Lord Carnwath derived comfort from the decision of the Aarhus Compliance Committee rejecting Road Sense’s complaints about the limited scope of the public inquiry, and the lack of consultation at earlier stages , on “the issue of common law fairness, and the merits more generally” [100].  See my earlier post on this decision.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;


  1. Lofthouse. says:

    Side Question: Has anyone challenged Coroner’s Rules re: their definition of an ‘interested party’ to a death?

    At present , it appears to be entirely up to a Coroner to decide who they recognise as an ‘interested party’ Once NHS reforms come online, would ANY member of the public, who lived in a particular area, and was likely to find themselves referred to a particular hospital by their GP, have a right to insist on an Inquest into the death of a third party (who was not a relative or close acquaintance) at that NHS hospital ? If refused, could they JR the decision? E.g. in the case of C.Diff/MRSA or poor care standards in a Foundation Trust hospital that had been permitted to ‘self assess’ by the Care Quality Commission for 15 years.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: