This post is by Carol Day, legal consultant to the RSPB and public interest law firm Leigh Day and Will Rundle, head of legal at Friends of the Earth.
On Monday, the Judicial Review and Courts Bill will receive its second reading in the House of Commons. Coincidentally, Monday is also when the seventh Meeting of the Parties to the Aarhus Convention opens. This UN convention, to which the UK is party, seeks to ensure that civil society has rights pivotal to the effective functioning of democracy, including access to information, public participation in decision making and access to justice in environmental matters.
It is, therefore, ironic that clause 1 of the Judicial Review and Courts Bill undermines the effectiveness of legal remedies for successful claimants in judicial review proceedings, as we explain below. This could have a dramatic chilling effect on the number of cases brought to court by claimants in the public interest (as is so often the case in environmental judicial review), for fear that winning might not actually prevent the damage that prompted them to litigate.
While many are relieved the bill avoids some of the more extreme proposals consulted upon, we believe clause 1 could have profound and damaging implications. It creates two new remedies and sets out when the court must grant them.
The proposals raise serious questions
First, Suspended Quashing Orders (SQO) would allow unlawful decisions to stand until quashed by court order at a future date. The second, Prospective Quashing Orders (PQOs), would appear to make unlawful decisions, or conduct, impermissible (as they would be quashed), but would deem their past use valid.
Clauses 1(8) and (9) of the bill set out the circumstances in which such orders must be granted. In particular, the court must consider “the interests or expectations of persons who have relied on the impugned [ie unlawful] act”. This will invariably include third parties to the legal action (such as developers) who stood to benefit from the unlawful act, such as the granting of planning permission. The court must also consider “any action taken or proposed to be taken, or undertaken given, by a person with responsibility in connection with the impugned act”. This presumably includes anything the defendant has committed themselves to do (eg political or contractual) when acting unlawfully.
In practical terms, the bill raises pressing questions around how it will work. For example, where the decision of a local planning authority is quashed by a SQO or PQO, will the developer still be able to go ahead with the proposal?
Another example, from a claimant’s perspective, is if an environmental permit is unlawfully granted to a large facility, to what extent will the judge consider the commercial and political interests in relation to the activity continuing, above the pollution caused to the local community and environment?
And, is it right that all of judicial review should be caught by these new rules? As these are not insignificant questions, they merit answers before politicians vote on Monday.
The government maintains that these new powers simply reflect the discretion currently enjoyed by the judiciary on remedies (the outcome sought by the claimant when embarking on judicial review), but that is not true. The bill creates a statutory presumption and requires judges to grant the new quashing orders in the circumstances set out in clauses 1(8) and (9. Claimants need early certainty around issues like cost protection and the effectiveness of legal remedies. Undermining that will discourage prospective claimants from bringing forward cases in the first place. The ambiguity is also likely to prompt lengthy and costly “satellite” litigation around the meaning of factors set out in clause 1(8) of the Bill.
The government’s proposals follow the Independent Review of Administrative Law (IRAL), chaired by Conservative peer Lord Faulks QC, which considered judicial review reform based on the Conservative manifesto commitment to “ensure that Judicial Review is available to protect the rights of the individual against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”. Its considered recommendations stopped well short of anything in this bill.
The government’s own consultation considered the proposals unfair
Even the government’s own consultation paper concedes that PQOs will “impose injustice and unfairness on those who have reasonably relied on its validity in the past”. PQOs also conflict with the Aarhus Convention’s requirement for its parties to provide successful claimants with “adequate and effective remedies” (Article 9), further undermining the UK’s already lamentable record on access to justice.
Judicial review has endured regressive reforms for well over a decade, subjecting claimants to an obstacle course of requirements. The current political climate, as signalled by this bill, creates more pressure for the courts. It would be naive to think judges are entirely insusceptible to political pressure. These reforms go well beyond those recommended by the IRAL, and will capture all judicial reviews, including public decisions by regulators and privatised industry, like water and sewage companies. This is hardly the stuff of the high politics of prorogation and the like, but it could still have a huge impact on communities seeking justice.
The government’s bill, in the face of its own review’s recommendations and substantial public opposition, sends a concerning message about its commitment to international law post-Brexit, and the rule of law in general. We will highlight its implications during the Aarhus Convention Meeting of the Parties this week, referring to a statement, submitted by Wildlife and Countryside Link, summarising concerns from all jurisdictions of the UK.
We urge politicians with conviction for the maintenance of the rule of law, alongside the principles of fairness and justice for those who have taken the bold decision to go to court, to oppose clause 1 of this bill in its entirety.