Polluter Pays Principle: in Tobago, in the EU/UK, and in UK post-Brexit

Fishermen & Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017 – read judgment

A vignette of where

(1) Trinidad and Tobago is,

(2) the EU/UK is,

(3) where Michael Gove may wish us to be post-Brexit,

on the Polluter Pays Principle (PPP), a key environmental principle.

As we shall see, in legal terms, the expansiveness of (1) and (2) contrasts with the potential parsimony of (3).

Now (3) may be better than nothing, as per the European Union (Withdrawal) Bill, i.e, no enforceable environmental principles at all. But that does not mean we should not aspire for more. After all, as we shall see, the PPP is hardly a racy new entrant into environmental law.

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Can you draw a line between this case and Anisminic?

Privacy International v. Investigatory Powers Tribunal [2017] EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017

Introduction

As all lawyers know, the great case about courts confronting a no-go area for them is the late 1960’s case of Anisminic.

A statutory Commission was given the job of deciding whether compensation should be awarded for property sequestrated, in the particular case as a result of the 1956 Suez crisis. The Act empowering it said that the

determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.

The House of Lords, blasting aside arcane distinctions, said that this provision was not enough to oust judicial review for error of law.

Fast forward 50 years, and another Act which says

determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

The Court of Appeal has just decided that, unlike Anisminic, this Act does exclude any judicial review.

Why?

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Announcement – new Commissioning Editor

We are delighted to announce that Jonathan Metzer has been appointed the new Commissioning Editor of the UK Human Rights Blog.

Jonathan practises across a range of human rights-related areas, including public law, immigration, inquests and public inquiries. He will develop the work of the existing and previous editorial team in ensuring that the Blog remains one of the go-to resources for any reader interested in the latest developments in human rights law.

We thank the outgoing editors Michael Deacon and Hannah Noyce for their excellent work over the last 12 months.

Air quality breaches stops development which threatened to exacerbate them

Gladman Developments v. SoS for Communities and Local Government, Interested Party:CPRE [2017] EWHC 2768 (Admin) 6 November 2017 – read judgment

 

An interesting example of how our planners must take air pollution concerns far more seriously in the light of the long-running ClientEarth litigation.

The developers wanted to build a total of 470 dwellings and 60 care units in Newington, Kent. Their application went to appeal before a Planning Inspector, and they lost on air quality grounds. They unsuccessfully sought judicial review of his decision.

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Supreme Court: state immunity rules incompatible with Article 6

Benkharbouche & Anor v Foreign & Commonwealth Office  [2017] UKSC 62, 18 October 2017  – read judgment

If you work for an embassy in London and are not a UK national, you cannot sue your employing state when you get unfairly dismissed. But if you enter a commercial contract with the same embassy, you can sue them.

This is the conundrum which faced the Supreme Court, who decided that the former result, although laid down by statute, was incompatible with Article 6 of the ECHR.

The SC’s sole judgment was by Lord Sumption, with whom the other justices agreed. It is a tour de force of international (rather than human rights) law, because therein lay the key issue.

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The biter bit – EU does NOT like being criticised by Aarhus body


ACCC Findings in ACCC/C/2008/32

Last week’s post concerned the judicial review costs system in environmental cases and its compliance with the prohibitively expensive rule Art.9(4) of the Aarhus Convention. 

Now for some more Aarhus developments which happened over the summer, this time involving the Aarhus Convention Compliance Committee (ACCC) having a pop at the narrow EU standing rules applicable to challenges to an act or omission by a EU body, and the EU not liking those findings at all.

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Aarhus costs cap challenge succeeds

RSPB, Friends of the Earth & Client Earth v. Secretary of State for Justice [2017] EWHC 2309 (Admin), 15 September 2017, Dove J – judgment here

In my March 2017 post here, I explained that amendments to the costs rules for public law environmental claims threatened to undo much of the certainty that those rules had achieved since 2013. Between 2013 and February 2017, if you, an individual, had an environmental judicial review, then you could pretty much guarantee that your liability to the other side’s costs would be capped at £5,000 (£10,000 for companies) if you lost, and your recovery of your own costs would be limited to £35,000 if you won. In this way, the rules sought to avoid the cost of such claims becoming prohibitively expensive and thus in breach of Art.9(4) of the Aarhus Convention.

The most worrying element in the February 2017 amendments was a new CPR 45.44  giving the courts a broad discretion to vary those amounts, apparently at any time. This seemed like an open invitation to the defendants to try to do this, aided by the financial information which claimants are now obliged to provide. It was truly regressive, taking us back to the days when you spent many thousands of pounds arguing about a protective costs order which was intended to save money.

In my March post, I explained that the new rules were being challenged by NGOs, and Friday’s judgment is the upshot of this challenge.

It is essentially a success for the NGOs.

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