When the court should look over the shoulder of a decision-maker

23 November 2016 by

NO2_PicR (ClientEarth No.2) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J,
21 November 2016, transcript awaited

A quick follow-up ruling to the judgment of 2 November (here) in which the UK’s air pollution plans under EU and domestic laws were found wanting by the Administrative Court. The pollutant was nitrogen dioxide – a major product of vehicle exhaust fumes. 

This Monday’s hearing was to decide precisely what the Government should be ordered to do in respect of the breach. The judgment was extempore, but the short reports available (e.g. here) suggest that the ruling is of some interest. 

The parties had already agreed that it was unnecessary  to quash the existing plan, which could remain in place until the following year whilst DEFRA prepared a new plan – presumably on the basis that a defective plan was better than no plan at all.

This week’s disputed issues related to timing for a new plan and whether and how the court could or should keep a watchful eye on Governmental progress.


The judge ordered that a draft modified Air Quality Plan should be produced on 24 April 2017 . The new plan should be published and sent to the European Commission by 31 July 2017. The UK remained in breach of Directive 2008/50 which had to be complied with as soon as possible. The Government had evidently argued for a longer period; the court thought that a shorter consultation period than was usually required was entirely justified in the circumstances. The production of a final report should be regarded as a priority for the government – the need was



As to oversight, the judge considered that the parties should be able to return to court if legal issues arose in the course of preparing the new plan – in legal speak, there should be ” liberty to apply”. However, this should not be extended too far. Such a liberty to apply could not enable fresh applications and fresh proceedings in a fresh claim.

The distinction here between existing proceedings and future ones is important. It is  not necessarily easy to draw in practice, as can be seen from the cases referred to by the judge, in particular R. (Yousuf) v Secretary of State for Foreign and Commonwealth Affairs. In Yousuf, the Foreign Secretary had agreed to reconsider a passport application. The claimant wanted the proceedings to be stayed whilst this was done. Holman J disagreed. He held that it was wrong in principle that a public authority should have to reconsider a decision afresh

with the court looking over its shoulder. Judicial review did not exist to regulate or micromanage public authority decision-making. It existed to consider the lawfulness or rationality of a decision which had already been made.

On the facts of that case, the proceedings were not stayed. To do so, said the judge, would have risked blurring  the important distinction in decision-making between public authorities and the court.

On our case, however, one can readily see why Garnham J thought that more was required. The UK had long been in breach of EU law and the impugned plan seemed to be the latest in a  series of feet-dragging attempts to put off the evil day. A judge breathing down the neck of Government is exactly what the public interest required.

I dare say this will not be the last time the dispute comes before the court – most of the posts listed below concern earlier toings and froings of this litigation over the last 5 years. Reducing NOx emissions, though plainly in the public interest given their impact on people’s lives (literally – c.23,500 deaths a year), is far from straightforward to achieve, and requires some considerable political will.

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  1. Captain Sensible. says:

    The eco-warriors within the UK and more so within the EU will not be satisfied until we are driven back to the dark ages. In the meantime China puts out more pollution than anyone and even if we stopped all UK emissions, the growth in Chinese emissions would cover that within 12 months. Germany propose to build over 20 new coal fired power plants – yes that green nation – using fossil fuels. In the meantime we leave billions of tonnes of coal in the ground untouched. The UK has trillions of cubic feet of Shale Gas which could keep us energy secure for decades yet we persist in letting the eco-loons dominate the discourse with their half truths and outright lies. If you think over subsidised windmills are the cure then think again.

    Lets all live in mud huts, cook by open fire using cow dung as the fuel, use candlelight to see in the dark, travel by horse and cart and throw human waste into the streets and cause massive disease and deaths.

    This progress lark is all a bit overrated…../sarc

  2. Reblogged this on Musings of a Penpusher.

  3. Here in Carmarthenshire, the town-hall bureaucrats have dictated that although taxpayers are being encouraged to scrap plastic bags in favour of the multi-use -long-life variety, the local authority insists we use blue (free to collect) plastic refuse sacks one week and black (which we must buy) the next; with the addition of green sacks for garden waste in the spring/summer/autumn. Woe betide the household that puts out the wrong colour – rubbish is abandoned until the next time round.

    In the county borough of Caerphilly on the outskirts of Cardiff about fifty miles away, each house has been allocated a large wheelie bin to contain their household rubbish. Here in Carmarthen many of us have bought our own bins, but must still put all rubbish into that week’s appropriate colour code plastic bag and only then put the rubbish inside the appropriate coloured sack and place all in the bin for collection on the specific day appointed. Recently changed in our district from Monday to Wednesday – as were the lorries and the crews.

    So often change seems to be instigated upon a whim – as though those in county hall and other demesnes of the Establishment need to prove they’re awake by bringing about change for the sake of change. Maybe they’ve never heard the plea: “If it ain’t broke, don’t fix it.”

  4. Violet says:

    Looks like they are trying to get over! I am curious where it goes!

  5. daveyone1 says:

    Reblogged this on World4Justice : NOW! Lobby Forum..

  6. Gary Dorrington says:

    I am a london black cab driver in October of this year TFL brought in new legislation making it conpulsary for all black cab driver to except credit cards ( which we duly accept) however TFL alao imposed  against us all xharges relating to this in other words we bear the brunt of the credit card charge this i deem illegal because TFL set the tariff  of the meter so if a fare goes £10 this is what I should get not as it stands £9.40. We as cab drivers were never given the chance to challenge this and TFL incorperated  this in our licence renewals in other words if we failed to accept this our licence would not be renewed. Can we go to the european court over this.

    Regards Gary

    Sent from Yahoo Mail on Android

    1. Unless there is EU legislation on this (which I am not aware of), this may be considered entirely ‘national’ and hence not within the scope of EU law.

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