Guest Blog – Fifty shades of Grayling by Carol Day

Carol Day 180x180Carol Day has worked for environmental NGOs, including The Wildlife Trusts and WWF, for over 25 years. She now works as a Solicitor for Leigh Day where she runs the Environmental Planning and Litigation Service (EPLS ) and is also a part-time Legal Consultant for the RSPB. The views expressed here are her own.

Mark’s blog has a very large following by any standards. I suspect that many of you, like me, read it because he has the courage to say what he believes. As an independent expert, he is unconstrained by the limitations of NGOs (Trustees, members and, occasionally, corporate sponsors) and, providing he stays within the law, he can say what he likes. And that’s not only a welcome and refreshing quality in the current economic and political climate – it is a fundamental tenet of any modern democracy.

However, you may have noticed this Government doesn’t like being criticised nor, for that matter, challenged. Since coming to power, the Lord Chancellor and Secretary of State for Justice, Chris Grayling has engineered a relentless war on Judicial Review (JR) – the mechanism by which you and I can challenge the legality of decisions made by public bodies. JR has been relied on by numerous individuals and NGOs over the years as a last resort for environmental protection – whether to establish the Habitats Directive applies in the marine environment – or to challenge decisions for a third runway at Heathrow, High Speed 2 or the legality of feed-in tariffs for solar panels.

As a mechanism, JR isn’t perfect. It provides a mechanism to challenge the procedure by which decisions are made (much less so the merits) and it has low success rates, but recent measures to “tackle the burden that the growth in unmeritorious judicial reviews has placed on stretched public services” is akin to death by a thousand cuts.

Measures you might have read about include plummeting legal aid budgets, reduced time limits for lodging planning cases and increased fees for pursuing an oral hearing for a refusal of permission on the papers. And there’s more to come. Last month, the Ministry of Justice (MoJ) published the Criminal Justice and Courts Bill to progress another raft of reforms to address “procedural defects” in JR. These will include requiring claimants to provide information on funding at the outset of a case so the Courts can make costs orders against external funders and a presumption that interveners will bear the costs arising to other parties from their intervention, despite acknowledging that “interveners can add value, supporting the court to establish context and facts”. As if litigation wasn’t intimidating enough.

It is worrying that environmental NGOs are a particular target of the reforms. Despite a failure to provide any empirical evidence, attention is drawn to the potential for the “abuse” of JR (principally by campaigners using JR as a delaying tactic) and the role of JR as a “brake on economic recovery”. In order to get major infrastructure cases moving, the Government is also establishing a Planning Court in the High Court, with a separate list under the supervision of a specialist judge. While the introduction of a dedicated forum has potential advantages (such as accumulating expertise and reducing delay), such a forum must demonstrate a broad approach to planning cases, not just the views of one particular judge.

It is also of concern that the Government is pressing ahead with the reforms in the face of such widespread public concern. For example, two-thirds (67%) of those consulted did not support the proposal to shorten the time limit for planning cases from three months to six weeks, nearly three quarters (74%) were opposed to the proposal to remove the right to an oral renewal where an application for permission to bring JR was assessed by a judge as “totally without merit [Note 1]”; and two-thirds were opposed to the proposal to require applicants to provide information on funding at the outset of judicial review. Nevertheless, the Secretary of State did not “accept these criticisms” and went ahead regardless.

In light of the above, Mr Grayling must be particularly irritated by the UK’s obligations under the Aarhus Convention. I have previously written in this blog about the importance of this far-reaching UNECE Convention for participatory rights (access to information, public participation and access to justice) and last month, the UK lost the final chapter of the environmental costs jigsaw in the European Court. A complaint lodged with the European Commission by seven environmental NGOs [Note 2] in 2005 inexorably crawled its way to Luxembourg (with a successful excursion to the Aarhus Convention Compliance Committee in Geneva along the way). It is now clear that the costs regime for environmental cases introduced, of all days, on 1st April last year cannot be unravelled. Despite previous allegations the new regime is “gold plated”, it is clear the Government may, in fact, have to make further improvements to the scheme, which now limits the adverse costs liability of individuals and groups to £5,000 and £10,000 respectively. As the previous costs regime was pretty much akin to writing a blank cheque for bodies funded by the taxpayer, these figures give some reassurance to those embarking on environmental cases. But the survival of the Aarhus regime cuts a lonely figure amongst widespread moves (such as the Red Tape Challenge, and reviews of the Habitats Directive and EU/UK Balance of Competencies) to undermine the effectiveness of international and EU law.

The Government’s attitude to JR reveals a woeful misunderstanding of its importance. Environmental cases are not road traffic matters – they concern complex legal arguments of unlawful behaviour by public bodies with potentially catastrophic and irreversible effects. Restrictions on judicial review are of constitutional importance, and should not be confused with measures to cut red tape. Individuals and civil society groups, particularly those concerned with the protection of the environment in the public interest, should not be denied their fundamental constitutional right to check an abuse of power on the basis of anecdotal evidence or costs-cutting.

If you agree, please support members of CAJE opposing provisions in the Criminal Justice and Courts Bill eg CPRE, FoE .

 

  1. Note that Friends of the Earth “solar challenge” was originally refused permission on the papers and effectively assessed as totally without merit – but was granted permission with expedition at oral renewal and subsequently succeeded in both the High Court and Court of Appeal, with the Government being refused permission to appeal to the Supreme Court
  2. The Coalition for Access to Justice for the Environment (CAJE), comprising WWF, Friends of the Earth, RSPB, Greenpeace, CPRE, Environmental Law Foundation and the Living Spaces Project
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16 Replies to “Guest Blog – Fifty shades of Grayling by Carol Day”

  1. Thanks for that Carol. Pretty sure I agree with you, but what you have written is not very clear. Is it just the legal lterms confusing me?

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  2. The irony is that by and large these attacks on freedom aren't working. the conservative part od this Government seems to have come to power believing that having won (or not, as in this case) an election you then have carte blanche to do what you like, whether or not you said you were going to do it. The economy apparently provides top cover for whatever outrage you decide to perpetrate - and, of course it is all Labour's fault anyway.

    The problem the Government have run into is that it just doesn't work like that - there has to be a degree of consensus, not necessarily based on party lines (a concept which many modern politicians seem to struggle with). Yes, they have got away with a lot, but in environment at least probably a great deal less than the rhetoric would suggest. In fact, where they have created confrontation they've often had the effect of sharpening issues - nowhere better than in the famous forest sales U turn - but also over issues like fracking where the economy vs environment story looks like transforming itself into big business vs the rest of us, and probably north vs south.

    Rather than winning the arguments, the government is succeeding in creating a long list of lose-lose scenarios - and at the bottom of it all is loss of trust, and nothing promotes loss of trust more effectively than secrecy (and we've all experienced the Defra view on FOI through this blog) and suppressing valid objection.

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    1. Roderick - i think you are right. This government is behaving like a group that thinks that it only has one chance to make changes and it doesn't care who it upsets along the way. There is little concensus and no concensus-building.

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    2. Thank you Roderick - I agree. What I find most troubling is the determination to push things through in what amounts to an evidential vacuum. The Ministry of Justice refers repeatedly to the role of Judicial Recovery in holding back "much needed economic recovery" - yet they provide no statistics to support the assertion. In fact, of the 400 planning cases lodged in the Administrative Court in 2011, just 15 represented “major planning and infrastructure cases” (some 0.1% of the total number of cases). Talk about a (misguided) sledgehammer to crack a nut!

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  3. Thank you Carol for producing such an informative, but sadly, very troubling blog.

    Although its Gold Cup day, today is tinged with great sadness after learning that the great Tony Benn passed away this morning. Now there was a man who understood the value of democracy and the importance of holding those in power to account. He'll be sorely missed.

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  4. I've always admired the way Carol is able to explain what can be complex legal concepts so clearly. And she has done it again here. Raising hugely important issues along the way. Issues, not only of great import environmentally, but issues that go to the heart of what our democracy really means, and what sort of a society we want. Certainly I don't want one where a narrow definition of economic growth trumps all other consideration that will lead to a happy, healthy, sustainable society.

    But this government has form when it comes to attacking democracy. Carol has mentioned many. I would add their recent attempts to restrict the amount of campaigning NGOs can do in the run up to an election and their woeful record on marine protected areas.

    Lump all of this together and you can only conclude this government has totally failed the environment and wildlife.

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    1. Stuart,

      I cannot agree more. Since coming to power, the Coalition Government proceeded to systematically undermine wildlife/environmental protection and the ability of those committed to enforcing it. Our mistake was waiting so long before concluding they were not, in fact, the Greenest Government ever. The Lobbying Bill, as you mention, remains very worrying.

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  5. Thanks Carol

    Great blog - so important that the ability of the people to defend their environment through the courts is protected.

    The sad thing is that the line we are trying to hold is inadequate.

    Currently we have to take court cases on the basis of a narrowly defined Judicial Review process that enables scrutiny only of whether the decision taken by an authority was procedurally and legally correct.

    In a world where the environment is properly protected we would also be able to challenge a decision because its implementation would damage our environment.

    This might for instance mean that an environmental NGO would have the right to appeal a planning decision to build a new housing estate on a wildlife rich floodplain, because doing so would damage biodiversity, flood protection and would cost others money in increased insurance rates and taxes.

    Matt

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    1. Hi Matt,

      You are so right! That's why CAJE is also keen to widen the scope of Judicial Review, so that the courts can look not only at whether a decision is lawfully made (i.e. were the right issues taken into account or not, were people properly consulted), but whether the decision is a reasonable one as well. We do have a ground for reason known as "Wednesbury reasonableness" (or irrationality) but experience has shown that a decision has to be basically barking mad to be challengeable - to the extent that no case is ever run on irrationality alone. Once again, Aarhus helps us as it requires contracting Parties to provide not only a procedural review but a substantive one as well. We are on the case.

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  6. Thank you Carol - very interesting if hugely depressing. One more in a long list of the many and varied ways in which the Govt is undermining, if not attacking outright, the protection of biodiversity, flying in the face of its stated commitment to do just the opposite. One of the big problems I see is that most of the things going on are totally insidious and completely outwith the awareness of "the man in the street" - thus most people are just not putting it all together and seeing what it all adds up to. Which is probably deliberate of course.

    And, of course, yet another example of Govt totally ignoring the advice/opinion arising from its own consultation.

    Unfortunately - unless you can tell me otherwise - I don't think there is one place where ALL these widespread, creeping and devious changes are being highlighted and publicised, which is what is needed. And maybe that is part of the strategy. A multi-pronged attack so that each different strand is picked up by a different group of people or organisations and there is no overall, coordinated fight back. I personally have never had anything to do with JR but in my sector we are experiencing numerous changes as a result of Govt policy and it is clear to see that across the vast spectrum of the environment it is all ultimately linked and that the final result will end up being much worse than the sum of its parts.

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