Monday, 5 November 2012

Who Will Stand Up (in Court) for the Ospreys?

The Ospreys of the title are not the Welsh rugby franchise (often engaged in fierce competition with my home province of Munster), but rather the fish-eating birds of prey found near water. When unlawful government action threatens such creatures, they cannot go to court to defend themselves. Who can? The UK Supreme Court recently had something to say on the question, in Walton v. Scottish Ministers, [2012] UKSC 44.

The question for the Court was whether an environmental assessment ought to have been conducted by the Scottish authorities in respect of a road project. A supplementary issue, raised not by the parties to the case but in obiter by the judges below, was whether the applicant had a sufficient interest to bring the case in the first place: did he fall within the phrase "any person aggrieved" in Schedule 2 to the Roads Act, 1984? It was the supplementary issue that provoked some interesting general comments.

A constant feature of cases about standing is a (fictional) character: the neighbourhood busybody who wishes to stick his or her officious nose into other people's business. Frankly, I happen to think that an individual or organization willing to incur the expense, in time and money, of bringing judicial review proceedings should be welcomed with open arms, not treated as some sort of pest. I would want serious evidence of a plague of such locusts before reaching for the judicial DDT. Nonetheless, the mythical busybody of the law reports has a strong hold on the judicial imagination.

Thus we see the applicant distinguished by Lord Reed from the neighbourhood busybody within the meaning of the statute:
  1. In the present case, Mr Walton made representations to the Ministers in accordance with the procedures laid down in the 1984 Act. He took part in the local inquiry held under the Act. He is entitled as a participant in the procedure to be concerned that, as he contends, the Ministers have failed to consult the public as required by law and have failed to follow a fair procedure. He is not a mere busybody interfering in things which do not concern him. He resides in the vicinity of the western leg of the WPR. Although that is some distance from the Fastlink, the traffic on that part of the WPR is estimated to be greater with the Fastlink than without it. He is an active member of local organisations concerned with the environment, and is the chairman of the local organisation formed specifically to oppose the WPR on environmental grounds. He has demonstrated a genuine concern about what he contends is an illegality in the grant of consent for a development which is bound to have a significant impact on the natural environment. In these circumstances, he is indubitably a person aggrieved within the meaning of the legislation.
Even when Lord Reed commented, quite sensibly, that the rule of law would be undermined if standing rules were insufficiently liberal, the busybody reappeared:
  1. In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority's violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.
Even if one were to grant for the sake of argument that busybodies are a problem and should be discouraged, I doubt that the logic would hold in the area of environmental protection. After all, animals cannot represent themselves (some amusing historical tales aside).

Hence Lord Hope's concern that standing rules should be wider for environmental protection purposes, though not quite so wide that anyone could initiate judicial review proceedings. One is not a busybody if one can demonstrate a genuine concern about the environmental impact of a governmental decision:
  1. I think, with respect, that this is to take too narrow a view of the situations in which it is permissible for an individual to challenge a scheme or order on grounds relating to the protection of the environment. An individual may be personally affected in his private interests by the environmental issues to which an application for planning permission may give rise. Noise and disturbance to the visual amenity of his property are some obvious examples. But some environmental issues that can properly be raised by an individual are not of that character. Take, for example, the risk that a route used by an osprey as it moves to and from a favourite fishing loch will be impeded by the proposed erection across it of a cluster of wind turbines. Does the fact that this proposal cannot reasonably be said to affect any individual's property rights or interests mean that it is not open to an individual to challenge the proposed development on this ground? That would seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone. The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf. 

  1. Of course, this must not be seen as an invitation to the busybody to question the validity of a scheme or order under the statute just because he objects to the scheme of the development. Individuals who wish to do this on environmental grounds will have to demonstrate that they have a genuine interest in the aspects of the environment that they seek to protect, and that they have sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity. There is, after all, no shortage of well-informed bodies that are equipped to raise issues of this kind, such as the Scottish Wildlife Trust and Scottish Natural Heritage in their capacity as the Scottish Ministers' statutory advisers on nature conservation. It would normally be to bodies of that kind that one would look if there were good grounds for objection. But it is well-known they do not have the resources to object to every development that might have adverse consequences for the environment. So there has to be some room for individuals who are sufficiently concerned, and sufficiently well-informed, to do this too. It will be for the court to judge in each case whether these requirements are satisfied.
If there are concerns about broadening access to judicial review, it would be better to focus on whether individuals or organizations are "well-informed" and "equipped". That they would show up in court at all should be treated as evidence of a genuine interest in the subject-matter of the litigation.

In any event, despite occasionally tough judicial language about standing, it seems to me that common law courts (with the exception of their American brethren) have generally been reluctant to refuse to hear cases for lack of standing. Nowadays, the busybody really is a creature of the judicial imagination rather than of the law reports.

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