Purdah: Government should obey the law in the run-up to an election

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R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here

Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough.  The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.

The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.

The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.

But the only justification for the delay was Purdah.

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Aarhus Convention update: Government still ignoring private nuisance claims

F_AarhusConventionIn November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.

Article 9 of this Convention says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.

First, the limited bit of good news in the governmental response.

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Free Trade Agreements and the White House – where are we now?

ceta_signing_qtp_848x480_796869187661Trump’s inauguration seems not a bad moment to be having a look at the Free Trade Agreements (FTAs, actual or potential) which are swirling around at the moment, and their likely reception in the changed world which we face.

First on the list, our own tried, tested, and found electorally wanting, EU Treaties. They are FTAs, but with lots of knobs on – free movement of people, of establishment, level playing fields about employment rights, the environment and consumer protection, to name but a few.

The first thing to say is that FTAs, wherever they are, don’t come all that unencumbered these days. Continue reading

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


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.

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Court says – again – UK must comply with EU air pollution law


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

This is all about nitrogen dioxide in air, an unwanted byproduct of the internal combustion engine. Its effect on UK mortality has been estimated at 23,500 deaths per year. 

The long way of telling the story involves circling around 6 hearings, to the Supreme Court, twice, to the CJEU in 2014 (C404-13, my post here), and now to a trenchant judgment from Garnham J. 

The short version is this.

The UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) over the last 6 years. Art.23 of the Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”.

The UK Air Quality Plan (AQP) produced in 2015 (and responding to the 2nd Supreme Court judgment here) was simply not up to ensuring that urgently required result.

In so concluding, Garnham J started with the construction of Art.23, in response to a Defra argument that it imports an element of discretion and judgment.

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The Environmental Law Foundation

elf_mainMany readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach of Article 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here 

So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.

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Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for

bank_MellatBank Mellat v HM Treasury [2016] EWCA Civ 452 1258, Court of Appeal, 10 May 2016: read judgment

Bank Mellat’s challenge to the Treasury’s direction under the Counter-Terrorism Act 2008  has been before the courts on a number of occasions. In 2009, the Treasury had concluded that the Bank had connections with Iran’s nuclear and ballistic missile programme. In 2013, the Supreme Court quashed the direction, which had stopped any institution in London from dealing with the Bank.

The Bank claims for damages caused by the unlawful direction. The claim is under the Human Rights Act via A1P1 of the ECHR, (the right to peaceful enjoyment of possessions).

Preliminary issues on damages came before Flaux J (judgment here, my post here). The Treasury appealed, with, as we shall see, some measure of success.

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