All public authorities are bound by law to conduct equality impact assessments and examine the implication of how their policies will affect, in relation to disability, ethnicity and gender, in advance of any change. A policy had been implemented by NOMS, named the Service Legal Agreement, whereby foreign male prisoners were transferred without due consideration of the effect such moves would have on disabled or ethnic minority prisoners, contrary to s.71 of the race Relations Act 1976 and to section 49A of the Disability Discrimination Act 2005.

This is the first Judicial Review sought by the Equality and Human Rights Commission to reach the courts.

To read the judgment, please click here.

To read the Commission’s commentary on the judgment, please click here.

Although the Crown’s failure to disclose to an accused material which might have materially weakened its case, or materially strengthened the accused’s case, had been incompatible with the European Convention on Human Rights 1950 art.6, that did not mean that the trial had been unfair. An appeal court would find that a trial had been unfair only if it found that the non-disclosure gave rise to a real risk of prejudice, and that there was a real possibility that the jury would have arrived at a different verdict.

Full report can be found here

This case is available to read here.

In granting the claimants application under those principles the court held that there was an arguable case that the Claimant was the victim of wrongdoing; the Secretary of State was mixed up in the wrongdoing of others so as to have facilitated the wrongdoing, it not being necessary to show that the actions of the Secretary of State were causative of that wrongdoing. It was, in fact, sufficient that the Secretary of State became involved in facilitating the wrongdoing, even if his involvement was innocent; disclosure was necessary, to the extent that it supported the Claimant’s claims; disclosure was in the interests of justice. Given the importance of the review decision to the Claimant, denying the review board the opportunity to consider his further submissions would not be in the interests of justice; as there was no prospect of gaining the information from the review board, or in gaining a straightforward remedy in the US habeas corpus proceedings and that with the exception of those documents which disclose the identity of individual agents, the documents sought fell within the scope of the available relief there was nothing to persuade the court that the relief sought should not be granted. This is, however, subject to hearing further argument on statutory prohibitions on disclosure and public interest immunity.

The full report can be found here.

Public Interest Litigation and Legal Aid in Scotland: A collaborative seminar between Scottish Human Rights Law Group, Environmental Law Centre Scotland, and The Centre for International Public Health Policy.

“It cannot be said that the Scottish judiciary has been a major agency of change in the last hundred years. The House of Lords has made abrupt turns from time to time and perhaps that is the appropriate place for changes to be made. The Court of Session has been, on the whole, conservative; it has refused to break new ground, not only because there was precedent against it, but also because there was no precedent for it. … The best that can be said for the judges is that they have kept the system going; that is, perhaps, their function.”

INTRODUCTION

The purpose of civil litigation, as usually conceived and judicially presented in the contemporary Scottish legal system, has been to obtain a resolution of a real dispute between individual parties about their respective rights and obligations inter se.

The vision of civil litigation is simple and straightforward but it is also profoundly limited and limiting. It is binary – win/lose; either/or- and individualistic. It can cope only with two sides (pursuer and defender), and only with one party on each side. There is no room on this picture for third party participation or intervention before the court. It cannot accommodate itself to the existence of a multiplicity of interests or participants, and so actions by or on behalf of a class are seriously problematic, indeed inconceivable on this model.

This analysis of what litigation is for has resulted in two emphases in Scotland: (i) the court will refuse to allow their jurisdiction to be prayed in aid unless the individual seeking to invoke the court can point to an alleged violation of that party’s individual rights (the requirement of “title and interest”); and (ii) the courts will refuse to adjudicate/allow themselves to be used in situations where their judgement will not actually effect a change in the situation of the two parties before it (no “academic disputes” principle).

The result is that the Scottish civil litigation appears to be incapable addressing itself to the possibility of cases being raised which concern (competing) claims of the “public interest”. Insofar as the public interest has been considered by the courts in Scotland in the recent past it appears to have become equated to the claims of the State as represented to the court by the Law Officers. This is presented by the Scottish judges as their being apolitical – as taking a principled constitutional position which requires them to distance themselves from deciding on politics and political questions, leaving these matters to the democratic process. But this is, of course, itself to take a political position, one which leads to the third characteristic of public law civil litigation in Scotland in recent history which has been that extraordinary deference has been shown by the judges to the views and submissions of the Lord Advocate and/or the Scottish Ministers, though this may be changing with the less prestigious and powerful role which the Lord Advocate occupies in the post-devolutionary settlement – no longer being in charge, for example, of judicial appointments and preferment.

It needn’t be like this, of course. We have the example of the extraordinary rise of public law and public interest litigation south of the border to show us that there is another way in which civil litigation can be conceived and realised. But for public interest to be able to come of age and flourish in Scotland there need to be some profound changes in the rules which govern civil litigation and in the attitude of our judges charge with considering and adjudicating on these claims. The hostility which seems to be shown by some judges in Scotland to litigation being raised in the public interest has to be faced up to, challenged and overcome.

ACTIO POPULARIS

The paradox is that, in contrast to the English legal system, Scots law received from Roman law the concept of the actio popularis, which is to it say the possibility of court action being raised by individuals in order to vindicate not their own individual rights but the rights of the public in general, or indeed a specific class. But as Clyde and Edward note

“Certainly a distinction has to be drawn between such matters of public right – that is a matter of common right in which every member of the public may participate with everyone else – and matters of the rights of individuals which others may have, but which are not held in common.”

Thus the nineteenth century case law is replete with examples of cases being taken by individuals seeking to protect defined areas of “common land” for public use against the depredations or encroachments upon it by local authorities or by other private individuals.

For example in Grahame v. Magistrates of Kirkcaldy the pursuer sued not as owner of the soil, nor as the proprietor of a dominant tenement, but as one of the community, applied for suspension and interdict against magistrates of a burgh building municipal stables on a piece of ground vested in them for the common use and enjoyment of the community. He was held entitled to a declaratory which affirming the right of the community in the ground in question and his action having been found being necessary for the vindication of the community’s rights, he was entitled to his whole expenses before the courts.

Macpherson v Scottish Rights of Way and Recreation Society Ltd is another example of a pressure group and general members of the public having a recognised title and interest to seek declarators re public rights of way over private land across mountains.

Wallace-James v Montgomerie & Co. Ltd. was an action brought by a private individual against a private company for interdict against the company encroaching upon an area of common land in the burgh of Haddington. The town council of Haddington had apparently acquiesced in this encroachment on common land and had refused to take proceedings against the company. They were however called for their interest in the action brought by the individual Haddington resident. By way of defence the respondent company argued that this was not an actio popularis, like a right of way case. In that class of case a decision would be res judicata. No such result would follow here, and the respondents, though successful in the present action, would still be open to attack by the Magistrates or other burgesses. If the Magistrates refused to do their duty, then the complainer should bring a declarator to have them ordained to raise an action, or at least to lend their instance, for the protection of the public right of which they were the only proper guardians. Lord Kinnear in the Inner House speaking for the First Division observed as follows

“The law is, that when a piece of land forming part of the common good of a burgh has been appropriated from time immemorial to such purposes as are alleged in the passage I have read, this possession by the inhabitants is a quality of the right in which the magistrates are vested for the benefit of the community, and any member of the community is entitled to protect it against encroachment even by the magistrates themselves. Accordingly, it was held in HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&FindType=Y”Sanderson v. Lees (1859) 11 D 1011, IH that an action of suspension and interdict must be sustained which had been brought by a single inhabitant of Musselburgh against the magistrates and against a certain William Brown, residing at Linkfield, to prevent the magistrates from feuing a part of the links, and to prevent Brown from building upon the ground proposed to be feued.

….

The foundation of the title in both cases is that the burgesses are not bound to submit to the discretion of their magistrates, but may protect their immemorial right of common enjoyment for themselves, even although the magistrates may think it better in the public interest that the property should be diverted to other purposes. The burgess must therefore have an equally good title to sue for interdict, whether the magistrates have abstained from interfering because of their active participation in the wrong, or because of their deliberate opinion that it is not worthwhile to incur the cost of litigation, or again, because of mere negligence and disregard of duty.”

One of the most important characteristics of an actio popularis is that a final decision on the legal issue will, in some sense, constitute res judicata and be valid contra mundum, that is to say that it will apply to and constitute a binding precedent upon all persons, even those who are not parties to the application in which this challenge is in fact being made. As Clyde and Edwards note this entails that the court accord a right to any interested party then to enter the process to put their submissions on this issue to be decided upon by the court:

“Clearly anyone seeking to enter the process should be able to demonstrate that he has a real material interest in the issue raised in the application. Where the decision may be res judicata to all members of the public, as in an actio popularis, it is obviously of importance to secure that sufficient advertisement is given of the application so that all interested parties may be convened into the process”

This is, however very far from the currently prevailing purely bilateral vision for civil litigation which we have in Scotland and may explain the decline in the very idea of an actio popularis in Scots law in the course of the 20th century. Thus, in dismissing the attempt by two individuals to challenge the lawfulness of the title under which the newly crowned Queen Elizabeth chose to call herself, Lord President Cooper noted as follows:

“It is true that we in Scotland recognize within certain limits the actio popularis, in which any member of the public may be entitled as such to vindicate certain forms of public right. But the device has never been extended to such a case as this. I cannot see how we could admit the title and interest of the present petitioners to raise the point in issue before the Court of Session without conceding a similar right to almost any opponent of almost any political action to which public opposition has arisen.”

NO POLITICS PLEASE – WE’RE SCOTTISH JUDGES

This fear of being seen to have become involved in politics seems to inform, too, the refusal by the courts in Scotland to accept the justiciability of claims that primary legislation passed by Parliament might contravene higher norms, for example Article XVIII of the 1707 Treaty of Union between Scotland and England which is in the following terms:

“[1] That the laws concerning regulation of trade, customs and such excises to which Scotland is by virtue of this Treaty to be liable be the same in Scotland, from and after the union, as in England; and

[2] That all other laws in use within the Kingdom of Scotland do after the Union and notwithstanding thereof remain in the same force as before (except such as are contrary to or inconsistent with this Treaty) but alterable by the Parliament of Great Britain, with this difference betwixt the laws concerning public right, policy and civil government and those which concern private right:

[i] That the laws concerning public right, policy and civil government may be made the same throughout the whole United Kingdom; but

[ii] That no alteration may be made in laws which concern private right except for evident utility of the subjects within Scotland.”

A plain reading of Article XVIII of the Treaty of Union arguably envisages the following legal consequences: (1) an automatic and complete harmonisation of customs, excise and trade law as between Scotland and England from the date when the Treaty comes into force; (2) the preservation of all other existing laws not concerned with the regulation of trade, customs and excise; (3) the granting of a power in the new legislature created by the Treaty to harmonise as between Scotland and England the public law applying in the two countries; and (4) the granting of a power in the new legislature to make (not necessarily harmonising) alterations in the private law applicable in Scotland, but only where such changes can be said to be for the evident utility of the subjects in Scotland.

The provisions of article XVII [2][ii] of the Treaty of Union, on the face of it, place a limit on the legislative competence of the UK Parliament in allowing it to alter private law in Scotland only where it is to the “evident utility” of the subjects in Scotland. Just Such a challenge was accepted as being justiciable in the 1921 decision in Laughland v Wansborough Paper Co Ltd., in which Lord Ashmore observed as follows:

“The second and only other ground on which the case for the complainer was maintained proceeded on the assumption that the sub rule had statutory sanction. It was contended, however, that it was beyond the competence of Parliament to authorize what the complainer describes as ‘an illegal attempt by means of a procedure rule to alter the laws which concern private right otherwise than for the evident utility of the subjects within Scotland,’ and to ‘compel Scottish subjects to their prejudice to submit to the jurisdiction of a foreign Court’.

A provision of the Treaty of Union is specially founded on. It is contained in the 18th article, which makes it a condition of legislation by the United Parliament that no alteration be made in laws which concern private right ‘except for the evident utility of the subjects within Scotland’…..

In spite of the difficulty and delicacy attending the exercise of the discretion committed to the English Court by the statute of 1875 and the relative statutory rules, however, it is apparent that the scheme of the legislation is intended to facilitate the administration of justice and to reduce the cost, and to meet the convenience of litigants in the different parts of the United Kingdom. Individual cases of hardship are not inconsistent with the general benefit.

I am of opinion that no sufficient ground has been shewn by the complainer to justify the conclusion that the procedure embodied in the new sub rule ‘is not for the evident utility of the subjects within Scotland,’ and is not calculated on the whole to meet the convenience of the people at both ends of the island.”

By contrast, in Gibson v Lord Advocate, an inshore fisherman from Banff challenged the validity of section 2 (1) of the European Communities Act insofar as it had the effect of applying, within the United Kingdom, art 2(1) of Council Regulation 2141/70/EEC. This Community law provision when read with art 100 of the Treaty of Accession of the United Kingdom to the European Communities, required that from 31 December 1982 equal access and fishing rights be given to fishing vessels from other member states to the maritime waters coming within UK territorial jurisdiction. It was argued before Lord Keith, sitting in the Outer House, that the opening of Scottish coastal waters to fishing vessels from outwith Scotland constituted “an alteration in the laws which concern private right” which was not “for the evident utility of the subjects within Scotland” and was consequently an act by the Westminster Parliament which contravened art 18 of the Treaty of Union. Lord Keith dismissed the application on a number of grounds of relevancy. On the question of the competency of the application, Lord Keith observed that he did not consider that the question as to whether or not any legislative change in Scots private law was for the “evident utility” of the subjects was a justiciable issue in the Court of Session the Lord Ordinary stated:

“The making of decisions upon what must essentially be a political matter is no part of the function of the court, and it is highly undesirable that it should be. The function of the court is to adjudicate upon the particular rights and obligations of individual persons, natural or corporate, in relation to other persons or, in certain instances, to the state. A general inquiry into the utility of certain legislative measures as regards the population generally is quite outside its competence

….

In MacCormick v. Lord Advocate  (supra), at p. 413, Lord President Cooper said ‘It is true that we in Scotland recognise within certain limits the actio popularis, in which any member of the public may be entitled as such to vindicate certain forms of public right. But the device has never been extended to such a case as this. I cannot see how we could admit the title and interest of the present petitioners to raise the point in issue before the Court of Session without conceding a similar right to almost any opponent of almost any political action to which public opposition has arisen.’ I consider that expression of opinion to be applicable to the present case, which seeks to bring under review by the Court the utility from the point of view of the inhabitants of Scotland generally of an alteration in the law said to have been brought about by a particular Act of the United Kingdom Parliament. But I consider the question not to be purely one of title to sue, but to be bound up with the relevancy of the pursuer’s averments, and the power of the Court to undertake a review of that character. If such a review were competent, I see no reason why it should not be instituted at the instance of any person who has an interest to invoke the powers of the Court”

NO ACADEMIC QUESTIONS PLEASE – WE’RE SCOTS LAWYERS

Additionally the courts in Scotland have held themselves out as being unwilling to allow themselves to be used as debating fora for the resolution of what they would term “purely academic disputes” unrelated to the particular facts of the individual case before it and have been hostile to the idea that they might be asked to pronounce “bare declarators” of law. Instead, it is not uncommon for Court of Session judges to assert that cases can only properly be brought before the courts in Scotland by individuals who can say that their rights are being breached and that they have a true on-going and live interest to have that matter resolved by the court. For example in Davidson v. Scottish Ministers Lord Hardie observed as follows:

“[J]unior counsel for the reclaimer acknowledged that the reclaiming motion was intended to deal with ‘ abstract questions of principle’. I strongly disapprove of the procedure adopted by the reclaimer and his legal advisers in this case. It is a matter for future consideration whether the court should dismiss at the earliest opportunity any similar such petitions unless the petitioner ha had recourse to and exhausted his remedies under the HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=121175&FindType=Y&SerialNum=0292582848″Prison Rules. If the court does not adopt such a stance there is a real rick that, by reason of the priority given to petitions for judicial review, judicial time and public funds will be utilised unfairly at the expense of other litigants.”

The Scottish judges in the House of Lords seem to have taken a different approach on the question as to the use of the courts to resolve issues which might have become academic as between the specific parties in the case but which still raise legal issues of public interest and general importance.

TITLE AND INTEREST IN SCOTTISH JUDICIAL REVIEW

Chapter 58 of the Rules of the Court of Session does not contain any explicit reference to the requirements of standing in judicial review applications (which generally raise matters of public law).

The Scottish courts have in the course of the 20th century insisted that there requires to be both title and interest to sue as a prerequisite to an individual or body being permitted to raise any action in court. The passage constantly cited in support of this approach is some passing observations of Lord Dunedin in the 1915 case of D & J Nicol v Dundee Harbour Trs, that for a person to have title to sue “he must be a party (using the words in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies”.

This same test (which focuses on private rights) appears, then, to have been applied by default to public law challenges by way of judicial review. The interest which the party seeks to protect must also be considered by the court to be “a material or sufficient interest” which will be prejudiced by the decision complained of. The rationale for rules on standing was explained by Lord Ardwell in Swanson v Manson as follows:

“The grounds for this rule are (1) that the law courts of this country are not instituted for the purpose of deciding academic questions of law, but for settling disputes where any of the lieges has a real interest to have a question determined which involves his pecuniary rights or his status; and (2) that no person is entitled to subject another to the trouble and expense of a litigation unless he has some real interest to enforce and protect.”

Notwithstanding some relatively recent Outer House authority to the effect that the rules on title and interest should not be applied in an artificial, technical or restrictive manner, particularly in a context such as judicial review, it is clear that the rules on standing to take judicial reviews in Scotland are applied far more restrictively than their equivalent rules in England and Wales. In particular the Scottish courts seem loath to admit the possibility of public interest challenges being taken before the courts to the lawfulness of executive or legislative action, notwithstanding some judicial criticism of the restrictive nature of this test

Limited statutory title and interest for (qua-)ngos

The rules on title and interest are common law, judge made rules which restrict access to the court in public law cases. But even the legislative intervention to date in Scots law has not particularly improved this situation, being piece-meal and grudging in its terms (except in relation to the statutory title it grants to the Law Officers.

The Scottish Human Rights Commission

For example, the Scottish Human Rights Commission – set up by the Scottish Parliament under the Scottish Commission for Human Rights Act 2006 – while permitted to intervene in legal proceedings “for the purpose of making a submission to the court on an issue arising in the proceedings” is expressly forbidden by its constituting statute to “provide assistance to or in respect of any person in connection with any claim or legal proceedings to which that person is or may become a party”.

The Equality and Human Rights Commission

And Section 7 of the Equality Act 2006 also prohibits the Equality and Human Rights Commission from taking “human rights action” in Scotland, or even from considering the question whether a person’s human rights have been contravened “if the Scottish Parliament has legislative competence to enable a person” to take such action or consider this question.

Environmental NGOs

The Environmental Impact Assessment (Scotland) Regulations 1999 (which seek to implement in Scotland the Environmental Impact Assessment Directive 85/337/EEC) were amended with effect from 1 February 2007 apparently to increase NGO’s rights of access to the court by the following provisions.

“46A Access to review procedure before a court

Any non-governmental organisation promoting environmental protection and meeting any requirements under the law shall be deemed to have an interest for the purposes of Article 10a(a) of the Directive and rights capable of being impaired for the purposes of Article 10a(b) of the Directive.

…

62A Access to review procedure before a court

Any non-governmental organisation promoting environmental protection and meeting any requirements under the law shall be deemed to have an interest for the purposes of Article 10a(a) of the Directive and rights capable of being impaired for the purposes of Article 10a(b) of the Directive.”

This is apparently the only amendment which was considered necessary or desirable by the Scottish government in relation to ensuring that environmental rights accorded the individual under the EIA Directive and the Aarhus Convention (which will be discussed in greater detail below) were able to be protected before the court in Scotland

Protective costs orders ?

The prevalent attitude on the requirements of title and interest to allow for judicial review challenges to proceed in Scotland results in the paradox, for example, that protective costs or expenses orders in Scotland can only be sought by persons who have an identifiable and specific legally recognized private interest in the outcome of a judicial review, a factor which might otherwise count against them in obtaining such an order in proceedings brought in England and Wales.

SUFFICIENT INTEREST FOR JUDICIAL REVIEW IN ENGLAND AND WALES

Scotland retains much more restrictive rules on standing compared to the practice in England which means that there is no real scope for public interest litigation by pressure groups or (quasi-) non-government organizations. In recent years, the English requirements on locus standi in judicial review applications have been radically loosened by the courts in England and Wales. There is no requirement to show title to sue in English judicial review. Since the 1977 reforms, all that has been required of the courts is to determine whether or not the applicant for judicial review has shown a “sufficient interest” in the matter to which the application relates. In recommending a broad inclusionary approach to this test of “sufficient interest” Lord Diplock observed:

“[There would be a] grave lacuna in … public law if a pressure group … or even a single public-spirited tax-payer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful action stopped.”

In general, the English courts have acted in accordance with the observations of Lord Diplock and have interpreted the test on standing liberally. As well as permitting concerned individuals the opportunity to seek to right public wrongs in judicial review, the courts in England and Wales have increasingly allowed representative organisations to pursue applications for judicial review whether on behalf of their own particular membership or even on behalf of the wider public interest. Thus, the Fire Brigades Union together with other unions and the Trades Union Congress have been permitted to challenge the non-implementation of a statutory scheme for criminal injuries compensation. The Equal Opportunities Commission has been found to have standing to challenge provisions of general employment protection legislation on the grounds of its indirectly sex discriminatory effects. Greenpeace, as a “responsible and serious environmental campaigning organisation” incorporated under the companies legislation was found to have sufficient interest to challenge the authorisation of the thermal oxide nuclear re-processing plant at Sellafield in Cumbria. The Child Poverty Action Group and the National Association of Citizens Advice Bureaux have been permitted to challenge the assessment of supplementary benefits for welfare claimants. The World Development Movement allowed to challenge the decision of the Secretary of State for Foreign Affairs to approve overseas development aid in respect of the Pergau Dam project in Malaysia. The Protesters Animal Information Network have been afforded a hearing to challenge the grant by the Government of licences for the export of live animals. The Joint Council for the Welfare of Immigrants were permitted to challenge new rules on benefits for asylum seekers. And the charity Help the Aged has been able to challenge the refusal of a local authority to provide financial help to persons assessed by them as being in need of care and attention. The Countryside Alliance was able to test the lawfulness of the fox-hunting ban in England and Wales. The Animal Defenders International charity was able to seek to challenge the lawfulness of the ban on political advertising. The anti-corruption pressure group Corner House Research has been permitted to challenge the lawfulness of decision of the prosecution authorities not to continue investigations in cases of serious fraud and corruption in connection with the conclusion of commercial contracts with foreign powers.

The differences in approach to date between Scotland and England and Wales are clearly to be seen in the English case of R. (on the application of Edwards) v Environment Agency (No.1) in which the applicant sought permission to apply for judicial review of the decision of the Environment Agency to issue a permit to Rugby Ltd, a company, authorising the use of tyre chips as a partial fuel in its cement factory. Prior to issuing the permit an extensive consultation exercise had been conducted, but substantial local opposition continued after the decision had been made. The applicant, a local resident, contended that, as a member of the public, he had been deprived of the opportunity to respond to the company’s views on the impact of the decision on the local environment because no environmental impact statement had been published in contravention of Council Directive 85/337/EC. The applicant had not made any representations to the Environment Agency or attended any of the public meetings during the consultation process. The Environment Agency submitted, inter alia, that in these circumstances the applicant did not have standing to bring the claim as he did not have sufficient interest in the decision, as evidenced by his lack of participation in the consultation process. In rejecting these submissions for the Environment Agency and granting permission for judicial review, Keith J. held that the applicant did have sufficient interest in the decision to bring the claim. He held that it was not necessary to participate actively in a campaign to have an interest in its outcome, and given that the applicant had such an interest he should not be prevented from subsequently challenging the decision simply because he chose not to participate in the consultation exercise. The judge observed as follows:

“15 In contending that Mr Edwards does not have a sufficient interest to bring the claim, Mr David Elvin Q.C. for the Agency did not suggest that Mr Edwards was bringing his claim as an individual, and not on behalf of himself and other local inhabitants of Rugby. It would have been open to Mr Elvin to make that suggestion on the basis of the material in the claim form and Mr Edwards’ witness statement. But such a suggestion would not have sat easily with the contention that Mr Edwards had been put up to front the claim by those who were the moving force behind it. So what Mr Elvin placed at the forefront of his argument was the nature of Mr Edwards’ principal challenge to the decision. Since an environmental statement had not been published, members of the public had been denied an opportunity to express their response to the Company’s view of the anticipated impact of the tyre trials on the environment. In that respect, the consultation exercise had not been conducted in the manner contemplated by the Directive. But in the consultation exercise which had taken place, Mr Edwards had played no part whatever. He therefore could have had no interest in whether an environmental statement of the kind supposedly required by the Directive should have been published.

16 I cannot go along with this argument. Apart from the fact that it takes no account of the other ground on which Mr Edwards challenges the decision to issue the Permit (the BAT issue [the best available techniques calculated to prevent, or at least to minimise, the emission of polluting matter]), the argument does not acknowledge that Mr Edwards was entitled to leave it to bodies like the Rugby Primary Care Trust and Rugby Borough Council to look after the interests of local people, and to pressure groups like Rugby in Plume to be active in its opposition to the Permit on behalf of local people. You do not have to be active in a campaign yourself to have an interest in its outcome. If the consultation exercise ends with a decision which affects your interests, you are no less affected by that decision simply because you took no part in the exercise but left it to others to do so. You should not be debarred from subsequently challenging the decision on the ground of inadequate consultation simply because you chose not to participate in the consultation exercise, provided that you are affected by its outcome. It has been said that it is easier to identify a sufficient interest than to define it, but as a local inhabitant, Mr Edwards has a sufficient interest in the decision to issue the Permit even if he is temporarily homeless, because as an inhabitant of Rugby he will be affected by any adverse impact on the environment which the trials on the use of tyre chips may have.

….

21. … I have concluded that it would not be an abuse of the court’s process for this claim to be brought in Mr Edwards’ name, even if he has been put up to front the claim in order to secure public funding for it, when it was thought by those who were the moving force behind the claim that funding would not otherwise have been available. Since Mr Edwards has the standing to bring the claim, it will now go forward to the further hearing to which I have already referred. In the circumstances, it has not been necessary for me to consider Mr Wolfe’s wider argument that, whatever the position of Mr Edwards, the claim should be allowed to proceed on the basis that the issues which the claim raises need to be decided, that the court has a free-standing obligation to monitor compliance with a Council directive, and that the court should be slow to prevent a serious claim that a Council directive has been ignored from being heard. It is not contested that the Secretary of State for the Environment, Food and Rural Affairs should be joined as a defendant, given his responsibility for the environment and for the Pollution Prevention and Control (England and Wales) Regulations 2000, and I order that he be so joined.”

Following this decision on the applicant having “sufficient interest” to raise the judicial review, the case was considered and decided upon on its merits, including up to the House of Lords (which itself gave leave to appeal) no further challenge being taken to the applicant’s rights to bring the case.

The decision on standing in Edwards No. 1 is simply one illustration of the general approach to judicial review in England and Wales which is to the effect that a person or an organisation with no particular legal interest in the outcome of a case might wish, and be well placed, to draw the court’s attention to an apparent misuse of public power. The alternative scenario is that abuses of power go unchecked because there is no-one in the restricted category of people with a private interest in the matter willing or able (perhaps through lack of finance) to challenge the decision. But as Sedley J. noted in R. v Somerset County Council, Ex parte Dixon, in rejecting the challenge to the standing of the applicant – who was neither a landowner not had any personal right or interest threatened by the development in question– to bring a judicial review against a planning authority’s grant of outline planning permission to extend a developer’s limestone quarrying operations:

“Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for leave, the court’s only concern is to ensure that it is not being done for an ill motive. It is if, on a substantive hearing, the abuse of power is made out that everything relevant to the applicant’s standing will be weighed up, whether with regard to the grant or simply to the form of relief.

Mr Dixon is plainly neither a busybody nor a mere troublemaker, even if the implications of his application are troublesome for the intended respondents. He is, on the evidence before me, perfectly entitled as a citizen to be concerned about, and to draw the attention of the court to, what he contends is an illegality in the grant of a planning consent which is bound to have an impact on our natural environment. That his application, were it to succeed, would also unravel a series of environmentally beneficial steps represented by the nine ancillary agreements cannot reduce or qualify any illegality he can show in the grant which he seeks to challenge.”

VICTIM STATUS AND STANDING TO CHALLENGE IN CONVENTION RIGHTS CASES

Compared to the English law “sufficient interest” test, the requirement under the European Convention of Human Rights that one be a “victim” in order to be able to complain of a breach of Convention rights is relatively restrictive. And the European Court of Human Rights has noted:

“In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure. The concept of ‘victim’ in Article 34 must be interpreted autonomously and independently of domestic law concepts, such as a capacity to bring or take part in legal proceedings”

The European Court of Human Rights is also clear that the ECHR system simply does not recognize the possibility of applications to it by way of actio popularis. The Court has most recently noted as follows:

“161.  The Court reiterates at the outset that a person, non-governmental organisation or a group of individuals must, in order to be able to lodge a petition in pursuance of Article 34, claim “to be the victim of a violation … of the rights set forth in the Convention…” While it is true the rules of admissibility governed by Article 35 must be applied with some degree of flexibility and without excessive formalism, Article 34 requires that an individual applicant should claim to have been actually affected by the violation he alleges (see Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28); it does not institute for individuals a kind of actio popularis for the interpretation of the Convention or permit individuals to complain against a law simply because they feel that it contravenes the Convention (see Norris v. Ireland, 26 October 1988, § 31, Series A no. 142). The same applies to events or decisions which are alleged to infringe the Convention (see Fairfield and Others v. the United Kingdom (dec.), 24790/04, 8 March 2005).

162.  The existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003‑IX). Therefore, in order for an applicant to be able to claim to be a victim of a violation of the Convention, he must be able to show that he has been directly affected by the impugned measure (see Sanles and Sanles v. Spain (dec.), no. 48335/99, 26 October 2000).”

Victim status and Article 34 ECHR

The Strasbourg test of victim status is incorporated into national law by both Section 7 of the Human Rights Act and by Section 100(1) of the Scotland Act. The former provides, so far as relevant:

“7 Proceedings

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

….

(4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act.

…

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

The Scotland Act states, so far as relevant :

“100 Human rights

(1) This Act does not enable a person—

(a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or

(b) to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.”

If the Strasbourg case law is not supportive of the claim by a petitioner to be a “victim” for the purposes of Article 34 of the European Convention on Human Rights then by virtue of Section 100(1)(a) of the Scotland Act 1998 et separatim Section 7(1) of the Human Rights Act 1998, they are not able to rely upon any of the Convention rights in the present proceedings. As Lord Scott of Foscote observed in Savage v South Essex NHS Trust:

“a claim under section 7 of the 1998 Act may only be brought by a ‘victim’ of the unlawful act or omission relied on … [T]he locus standi of the claimant to bring this action … could have been a short preliminary point of law potentially dispositive of the action”.

In relation to determining “victim status” for Convention purposes the obligation of the national court not to pre-empt or go beyond Strasbourg jurisprudence is, if anything, even stronger. The court is not simply enjoined, as under Section 2(1) HRA to “take account” of the case law of the European Court of Human Rights. Instead the court is instructed – Section 100(1)(a) of the Scotland Act 1998 et separatim Section 7(1) and 7(7) of the Human Rights Act 1998 – to apply precisely the same tests as are applied by the European Court of Human Rights under Article 34 ECHR. As is stated in Section 7(7) HRA:

“[A] person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act”.

The national courts are given no margin of appreciation on this. Their statutory obligation is one of following and applying the established Strasbourg jurisprudence of this autonomous concept, not developing it or anticipating it or adapting to new situations encountered in the national sphere, or applying its case-law to new situations by analogy.

But while Section 7(4) HRA makes it plain that only such victims can raise judicial review proceedings in Scotland alleging Convention incompatible (in)action by a public authority, Section 100(2) SA is clearly intended to allow the UK law officers to raise proceedings alleging Convention rights breach by the devolved institutions in Scotland, even where the law officers cannot themselves claim victim status. This is part of the policing role which the law officers are given under the devolution statutes which has no parallel in the Human Rights itself (although the new Commission for Equality and Human Rights also has such a policing role in Great Britain under the Equality Act 2006). In disapplying the “victim” limitation in the case of the UK Law Officers the intent and effect of Section 100(2) SA is to broaden the range of persons who might raise Convention rights challenges before the courts in the case of acts of the devolved institutions – i.e. victims plus Law Officers. Paradoxically it is clear that the Law Officers, as emanations of the State, would not be able to take any Convention right arguments before the Strasbourg institutions.

The implications for the relatively restrictive victim test which the Strasbourg jurisprudence applies to individual complainants is that Convention rights arguments will not be able to relied upon in public interest cases in Scotland except by those who are in effect already recognised at common law as having title and interest to sue.

PUBLIC INTERNATIONAL LAW BASED CHALLENGE AGAINST THE SCOTTISH GOVERNMENT

The legal systems of both Scotland and England and Wales formally remain dualist, which is to say that unless and until formally incorporated into domestic law, the domestic courts of this court will not have regard to or seek in may way to enforce such treaty obligations which the United Kingdom may have assumed as a matter of public international law.

However, international law is not a thing writ on water. Section 126(10) of the Scotland Act defines “international obligations” for the purposes of the statute as meaning “any international obligation of the United Kingdom, other than obligations to observe and implement Community law or the Convention rights”. Sections 35(1)(a) and 58 SA also creates enforcement mechanism whereby the UK Government can ensure that, when acting within their devolved responsibility, the Scottish Parliament and the Scottish Ministers will exercise their devolved functions and act in a manner which is compatible with the United Kingdom’s international obligations. And Paragraph 7 of Schedule 5 to the Scotland Act 1998 states that

“(1) International relations, including relations with territories outside the United Kingdom, the European Communities (and their institutions) and other international organisations, regulation of international trade, and international development assistance and co-operation are reserved matters. (2) Sub-paragraph (1) does not reserve— (a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law, (b) assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.”

The effect of these provisions is that observing and implementing international obligations which have been assumed by the United Kingdom (even if they have not – fully – been incorporated into national law) falls within the competence of the Scottish devolved institutions. And the United Kingdom is party to the following international human rights Conventions, among others:

the UN International Covenant on Economic Social and Cultural Rights (1966);

the UN International Covenant on Civil and Political Rights (1966);

the UN Convention on the Elimination of All Forms of Racial Discrimination (1965);

the UN Convention on the Elimination of All Forms of Discrimination against Women (1979);

the UN Convention on the Rights of the Child (1989);

the International Convention on the Protection of all Migrant Workers and Members of their Families (1990)

The relevant provisions of the UN International Covenant on Civil and Political Rights (1966) are already mirrored in the Convention rights from the ECHR which are incorporated into national law by the Human Rights Act and by the devolution statutes. Broader rights are however conferred by some of the other international instruments noted above. For example the UN International Covenant on Economic Social and Cultural Rights provides, so far as relevant as follows

“Article 10

The States Parties to the present Covenant recognize that:

The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. ….

Article 11

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, ….

The UN Convention on the Elimination of All Forms of Racial Discrimination provides, so far as relevant, as follows:

“Article 5

In compliance with the fundamental obligations laid down in Article 2 of this Convention, State Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right to everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: -

…

(e) economic and social rights, in particular

…

(iii) the right to housing

(iv) the right to public health, medical care, social security and social services

….

Article 6

State Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violates his human rights and fundamental freedoms, contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”

The UN Convention on the Elimination of All Forms of Discrimination against Women provides so far as relevant as follows:

“Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

The UN Convention on the Rights of the Child (1989) provides so far as relevant as follows:

“Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

…

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

….

Article 4

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.

….

Article 19

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

….

Article 26

States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.

The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.”

And the International Convention on the Protection of all Migrant Workers and Members of their Families provides as follows:

“Article 1

1. …

2. The present Convention shall apply during the entire migration process of migrant workers and members of their families, which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the State of employment as well as return to the State of origin or the State of habitual residence.

Article 2

For the purposes of the present Convention:

The term ‘migrant worker’ refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.

…

Article 4

For the purposes of the present Convention the term ”members of the family” refers to persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognized as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned.”

The intention of the UK Parliament as revealed in the scheme of the Scotland Act 1998 was that the Scottish Government should not exercise the powers that were devolved to it by the 1998 Act in a manner which would put the United Kingdom in breach of its international treaty obligations. As a matter of constitutional principle and good government it is clear that if the United Kingdom’s international obligations are to be breached it will only be as a result of a deliberate and conscious decision on the part of Crown in right of the UK Government. It is for this reason that Section 58 SA was enacted (to give the Secretary of State power to prevent action by the Scottish Ministers incompatible with international obligations).

Further insofar as the Scottish Ministers fail to act in a manner which might otherwise be required to be done in Scotland under and in terms of an international obligation binding upon the United Kingdom they may be subject to enforcement action against them on the part of the Secretary of State by virtue of Section 58 SA. There are no parallel provisions in the Human Rights Act which set out the continued significance of public authorities abiding by the United Kingdom’s international obligations. Collectively these provisions of the Scotland Act might be said to bind the Scottish Ministers to exercise their powers in a manner which respects the whole range of international treaty obligations entered into by the United Kingdom even where they have not been incorporated into the domestic law of the United Kingdom.

And as we have noted Paragraph 7(2)(a) of Schedule 5 to the Scotland Act provides that it is within devolved competence for the Scottish Ministers (and Lord Advocate) to observe and implement “international obligations, obligations under the Human Rights Convention and obligations under international law”. Thus the Scottish Ministers have the power to take any action which might be said to be in implementation of the United Kingdom’s international obligations, including all those under the international human rights treaties listed above. In granting the devolved institutions power to implement international obligations Paragraph 7(2)(a) of Schedule 5 to the Scotland Act may in fact expand the competences of the Scottish Government even into areas (for example anti-discrimination laws) which otherwise look to be reserved to the UK Parliament.

But, at least in Scotland, any such challenge could only competently by such party as the court consider otherwise has title and interest to challenge the decision in question. The decision of the House of Lords in Whaley v. Lord Advocate makes clear given the specific statutory machinery provided for in the Scotland Act as regards the enforceability of public international law against the Scottish Ministers there would be difficulties in any party other than the UK Government being regarded as having title and interest at common law to raise public international law issues vis à vis decisions of the Scottish Ministers.

It may be however that an argument could be presented to the effect that a legitimate expectation enforceable by a private party to the effect that that the actions of the Scottish devolved institutions will be compatible with the United Kingdom’s “international obligations” Thus, while not making international obligations directly part of the domestic Scots law, the Scotland Act may itself be said to embody and create a legitimate expectation, enforceable by those with the necessary title and interest, that the actions of the Scottish devolved institutions will be compatible with the United Kingdom’s “international obligations”.

AARHUS AND THE VINDICATION OF THE PUBLIC INTEREST IN ENVIRONMENTAL CASES

On 24 February 2005, the UK ratified the United Nations Economic Commission for Europe (UNECE). Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Aarhus Convention”) and became a full party to the Convention in May 2005. The European Community as whole is also a signatory to the Convention, and ratified it on 17 February 2005. The Aarhus Convention has three main pillars comprising: access to environmental information (Articles 4-5); public participation (Article 6-8) and access to justice (Article 9).

The relevant provisions of the Aarhus Convention on access to justice are as follows:

“9(2) Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest or, alternatively,

(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,

have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.

9(3) In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

9(4) In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

9(5). In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”

For the purposes of domestic law, the Aarhus convention currently has the status of an international treaty the provisions of which have not yet been formally incorporated into national law. The provisions of the Aarhus Convention may however be relied upon before and indirectly enforced by this court on the following bases, among others:

In the exercise of the court’s discretion under national insofar as relevant to questions on access to justice, to decide these in a manner where possible which is compatible rather than incompatible with the principles of the Aarhus Convention

In construing provisions of national legislation which are capable of bearing an Aarhus Convention compatible interpretation, then the court should adopt the compatible interpretation on the basis that Parliament is to be presumed to have legislated in conformity with the UK’s international obligations, not in conflict with them;

In enforcing any the legitimate expectation, created under the Scotland Act that the actions of the Scottish devolved institutions will be compatible with the United Kingdom’s “international obligations”

In interpreting and applying Convention rights in the field of environmental law, notably Article 8 ECHR and Article 1 Protocol 1 ECHR.

In construing and applying provisions falling within the field of EU environmental law. The EU’s own ratification of the Aarhus Convention gives the European institutions competence to ensure that Member States comply with the Aarhus obligations in areas falling within the ambit of Community law. Further and in any event the principle of the Aarhus Convention on access to justice have arguably now become general principles of EU environmental law and have been specifically incorporated into EU secondary legislation. These principles therefore have to be taken into account in the interpretation of these provisions of EU law and of those provisions of national law which seek to implement the relevant EU law within the Member State.

The EU law limits on national procedural autonomy

It is a basic principle of EU law that national courts should ensure the existence of an effective judicial remedy to enforce and protect individuals’ rights under EU law. More specifically in the area of environmental law and the vindication of the public right of “wide access to justice” set out in the Aarhus Convention the terms of which are picked up and reflected in Article 10a EIA) the Court of Justice has affirmed as follows:

“21. Before the Högsta Domstolen …. the question … arose as to the exact scope of the right of appeal provided for by the Aarhus Convention, and whether the conditions laid down by Swedish law from that point of view, were too restrictive

…

45. While it is true that Article 10a of Directive 85/337, by its reference to Article 1(2) thereof, leaves to national legislatures the task of determining the conditions which may be required in order for a non‑governmental organisation which promotes environmental protection to have a right of appeal under the conditions set out above, national rules thus established must, first, ensure ‘wide access to justice’ and, second, render effective the provisions of Directive 85/337 on judicial remedies. Accordingly, those national rules must not be liable to nullify Community provisions which provide that parties who have a sufficient interest to challenge a project and those whose rights it impairs, which include environmental protection associations, are to be entitled to bring actions before the competent courts.

…

48. …..[A]lthough Directive 85/337 provides that members of the public concerned who have a sufficient interest in challenging projects or have rights which may be impaired by projects are to have the right to challenge the decision which authorises it, that directive in no way permits access to review procedures to be limited on the ground that the persons concerned have already been able to express their views in the participatory phase of the decision-making procedure established by Article 6(4) thereof.

49. Thus, the fact relied on by the Kingdom of Sweden, that the national rules offer extensive opportunities to participate at an early stage in the procedure in drawing up the decision relating to a project is no justification for the fact that judicial remedies against the decision adopted at the end of that procedure are available only under very restrictive conditions.”

Although in the absence of specific European procedural harmonisation it is within the competence of the Member States to designate which of their courts have jurisdiction in, and what procedural conditions apply to, actions seeking to invoke EU law directly. This national procedural autonomy is, however, limited in certain respects by EU general principles of law:

first, national procedural rules should not be applied in such a manner as to make the enforcement of EU rights more difficult than the enforcement of analogous national rights – that is, there should be no procedural discrimination between national law and EU law rights;

secondly, even where they apply equally both to national and to EU law rights, national procedural rules should not have the effect of making it impossible in practice, or even excessively difficult, to exercise rights guaranteed under EU law.

As the Grand Chamber of the European Court of Justice has confirmed:

“42 [W]hile it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection. It is for the Member States to establish a system of legal remedies and procedures which ensure respect for that right.

43 In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness).

44 Moreover, it is for the national courts to interpret the procedural rules governing actions brought before them, such as the requirement for there to be a specific legal relationship between the applicant and the State, in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective, referred to at para.[37] above, of ensuring effective judicial protection of an individual’s rights under Community law.

Further, Member States must adhere to the fundamental principle of equality when implementing Community law within their territory.     This requires that similar situations should not be treated differently unless such differentiation is objectively justified. Member States must comply with this principle where Community rules leave them to choose between various methods of implementation. Thus Member States and their courts may not choose an option whose implementation would be liable to create, directly or indirectly, discrimination within the territory of the Member State as between individuals, in relation to their right to access the national courts to have their grievances in relation to EU law rights heard and determined.

The United Kingdom is the relevant Member State for the purposes of EU law, and none of England, Wales, Scotland or Northern Ireland is a separate Member State. In coming to a decision on title and interest in any case covered by EU law, the court in Scotland is therefore obliged to ensure that its decision is at least consistent with the manner in which the courts in England and Wales and Northern Ireland would treat an individual in the position of the petitioner (“principle of non-discrimination”). This arguably would involve the courts in Scotland being required to adopt at least the same wider standard on access to justice for individuals and NGOs/interest groups as is already permitted in England and Wales.

CONCLUSION

But perhaps the best one can hope for on the issue of the reform of public interest litigation in Scotland is not a series of individual court decisions (which ultimately would require to be taken to and upheld by the United Kingdom Supreme Court in order to have a chance of properly established within the Scottish legal system) but by way of the systematic reform of the whole system promised by the Gill Review on civil justice reform which promises the introduction of a new test of sufficient interest in judicial review, the imposition of a three month time limit in which judicial review applications are to be brought, and new rules allowing specifically for class actions.

Whether and when these reforms might be brought in is not clear. It seems unlikely that it would be a priority of the Scottish government to introduce reform in the court system which would make it easier for individuals and interest groups to take cases against them (at public expense) before the courts, though it is arguable that this is precisely what a properly constitutional democracy requires. What is clear, whoever, is that something has to be done. The Scottish judicial and legal system and cannot continue to ignore the need for the very possibility of public interest litigation. The administration of justice is supposed to be blind (in terms of being impartial). It is not supposed to be deaf to the clamour for justice to be done.

7 December 2009

Advocates Library

Parliament House

Edinburgh EH1 1RF AIDAN O’NEILL QC

W. A. Wilson “The progress of the law 1888-1988” (1988) Juridical Review 207 at 231

See for example Lord McCluskey “Opinion” in The Scotsman 3 August 2005 in which the now retired judge and former Solicitor General publicly criticised some of the reasoning and basis for Lord Bonomy’s judgment in Napier v. Scottish Ministers, 2005 SC 229, OH in which the Lord Ordinary held that the regime for remand prisoners in Scotland which involved prolonged cellular incarceration in doubled up cells with no integral sanitation (requiring slopping out) constituted Convention incompatible treatment. Lord McCluskey remarked thus:

“[T]he most remarkable feature of the Napier case was that the court accepted evidence that the Executive had deliberately decided to spend its limited financial resources on other things, in the light of their judgment as to what the public interest required.

…

The decision as to how limited public (i.e. taxpayers’) funds are to be spent within the criminal system is a matter for elected politicians not for judges. How can it be for judges to decide that spending money on improving toilet facilities for convicted criminals is more important than spending that money on tackling domestic violence or on trying to fight the menace of dangerous drugs ?”:

See Crichton v. McBain, 1961 JC 25 per Lord Justice General Clyde at 28-29:

“The Lord Advocate has appeared in person at this hearing and has informed the Court that he has fully investigated the matter more than once and, in the exercise of that wide discretion which is invested in the Lord Advocate, he has come to the conclusion that a prosecution would not be justified in connexion with this matter. He has therefore decided not to prosecute at his own instance and not to give his concurrence to the private prosecution which the present complainer desires to raise. The Lord Advocate is quite entitled to take up this position. In this country he is the recognised prosecutor in the public interest. It is for him, in the exercise of his responsible office, to decide whether he will prosecute in the public interest and at the public expense, and under our constitutional practice this decision is a matter for him, and for him alone. No one can compel him to give his reasons, nor order him to concur in a private prosecution. The basic principle of our system of criminal administration in Scotland is to submit the question of whether there is to be a public prosecution to the impartial and skilled investigation of the Lord Advocate and his department, and the decision whether or not to prosecute is exclusively within his discretion. This system has operated in Scotland for centuries, and—see Alison on Criminal Law, vol. ii, p. 88—the result has completely proved the justice of these principles, for such has become the public confidence in the decision of the Lord Advocate and his deputies on the grounds of prosecution, that private prosecutions have almost gone into disuse. It is utterly inconsistent with such a system that the Courts should examine, as it was suggested it would be proper or competent for us to do, the reasons which have affected the Lord Advocate in deciding how to exercise his discretion, and it would be still more absurd for this Court to proceed to review their soundness. Any dicta indicating that such a course is open to any Court are, in my view, quite unsound.”

See too Hester v. McDonald, 1961 SC 370 per Lord President (Clyde) at 378-379

“His [the Lord Advocate’s] responsibilities and privileges are quite unique, and they depend for their continuance on the confidence of the public in the utter impartiality with which he has always administered his onerous duties regarding crime. From time immemorial it has, therefore, been recognised, as Baron Hume puts it Crimes, vol. ii, p. 135 that ‘a constitutional trust is reposed in that high officer, selected by His Majesty from among the most eminent at the Bar; and it will not be supposed of him, that he can be actuated by unworthy motives in commencing a prosecution, or fall into such irregularities or blunders in conducting his process, as ought properly to make him liable in amends.’ As Alison says (vol. ii, p. 93) he is absolutely exempt from penalties and expenses. It is, therefore, an essential element in the very structure of our criminal administration in Scotland that the Lord Advocate is protected by an absolute privilege in respect of matters in connexion with proceedings brought before a Scottish Criminal Court by way of indictment.”

See for example Emms v. Lord Advocate, 2008 SLT 2, OH and Niven v. Lord Advocate, 2009 SLT 876, OH on the duties of the Crown as regards an Article 2 ECHR compliant investigation into a pre-Scotland Act death and XY v. Scottish Ministers and others, 2007 SC 631 (First Division considering the inter-relationship of reserved and devolved competence in the context of prisoner disenfranchisement

See foe example: Global Santa Fe Drilling Co. (North Sea) Ltd. v. Lord Advocate, 2009 SLT 598, IH rejecting the Lord Advocate’s submissions that it was not competent for a Sheriff to make an award of expenses against the Crown in a Fatal Accident Inquiry; and Kennedy v. Lord Advocate (No.2) [2009] CSOH 1; Kennedy v. Lord Advocate, 2008 SLT 195, OH where the Lord Ordinary held that the refusal by the Lord Advocate to institute an inquiry into the deaths of individuals infected with Hepatitis C virus from blood transfusions while in NHS care was incompatible with the requirements of Article 6 ECHR.

Judicial appointments are now in the hands of the Judicial Appointment Board for Scotland which by virtue of section 14 of the Judiciary and Courts (Scotland) Act 2008 is required in to have regard to the need to encourage “diversity” in the range of individuals available for selection for judicial appointments. This seems to have interpreted by the Board as requiring/empowering them to ask a number of questions of potential applicants for a judicial position, with a view to identifying such issues as: the applicant’s age, national identity, ethnicity and gender; whether the applicants consider themselves to be transgender; the applicants’ sexual orientation; their current marital or civil partnership status; their religion; whether they have a disability (which is defined as a mental or physical impairment that has a substantial and long-term adverse effect on one’s ability to carry out normal day to day activities); the number of any (dependent) children; whether the applicants have caring responsibilities for others; and the occupations of the applicants’ parents at the time the applicants began their legal training

Clyde and Edwards Judicial Review (2000) at paragraph 10.24

Grahame v. Magistrates of Kirkcaldy (1882) 9 R(HL) 91

Macpherson v Scottish Rights of Way and Recreation Society Ltd. (1888) LR 13, App Cases 744.

Wallace-James v Montgomerie & Co. Ltd. (1899) 2 F 107 per Lord Kinnear

See Boyce v. British Airways, 2001 SC 510, and Waydale Ltd. v. DHL Holdings Ltd., 2000 SC 172

See Turnbull v. Wilsons and Clyde Coal Co., 1935 SC 580

Clyde and Edwards Judicial Review (2000) at paragraph 10.29

See MacCormick v. Lord Advocate,, 1953 SC 396 per Lord President Cooper at 413

Laughland v Wansborough Paper Co Ltd., 1921 1 SLT 341 (OH) per Lord Ashmore at 345

Gibson v Lord Advocate, 1975 SC 136, OH per Lord Keith at 144

But see now Napier v. Scottish Ministers, 2005 SC 307, IH at paragraph 7:

“[W]e considered that there might be instances, as was envisaged by Lord Slynn [in R v Secretary of State for the Home Department, ex p Salem  1991 1 AC 450 at 457)], in which it would be in the public interest that an issue of general importance arising out of an academic appeal should, if possible, be resolved. We were satisfied that in the unusual circumstances of the present case we should hear argument in regard to grounds 1 and 5, in so far as they were concerned with matters of general legal principle, with a view to making, if possible, a declaratory order,”

Davidson v. Scottish Ministers, 2002 SC 205, IH per Lord Hardie at 216:

See Davidson v. Scottish Ministers, 2006 SC (HL) 42 per Lord Rodger at paragraph 58:

“[T]he issue of public importance in the appeal is whether the Scottish courts can ever grant interdict and interim interdict, or an order for specific performance and an interim order for specific performance, against the Crown. As I have explained, the issue arose at the very outset of the present proceedings when Mr. Davidson sought an interim order ordaining the Scottish Ministers to secure his transfer to conditions of detention compliant with Art 3 of the Convention, whether within Barlinnie or in another prison. Happily, Mr. Davidson completed his sentence in 2002 and so now has no reason to seek any such order. For him, the question is academic. But for other litigants in the Scottish courts, for the Scottish Ministers and indeed for the UK government, it is of perennial interest. The appeal presents the first opportunity that the House has had to consider the question in a Scottish appeal.”

See, too, Beggs v. Scottish Ministers [2007] 1 WLR 455; 2007 SLT 235, HL per Lord Rodger at paragraph 30:

“[B]y the time of the hearing before this House, an appeal [taken by the Scottish Ministers] which had been widely expected to raise a range of issues and which had been set down for a three-day hearing had shrunk to an appeal against the order, now spent, requiring Mr. Cameron and Mr. Gunn to appear before the First Division, and a request for clarification of a point of law discussed by the First Division in relation to a decision against which the [Scottish] ministers were no longer appealing.

D & J Nicol v Dundee Harbour Trs, 1915 SC (HL), pp 12–13

See Scottish Old People’s Welfare Council v. Secretary of State for Social Security 1987 SLT 179, OH per Lord Clyde at 184 and Adams v. Advocate General, 2003 SC 171, OH for a discussion of the requirements of title and interest in public law cases..

Air 2000 v. Secretary of State for Transport (No. 2) 1990 SLT 335. See also Air 2000 v. Secretary of State for Transport (No. 1) 1989 SLT 698

See Simpson v. Edinburgh Corporation, 1960 SC 313 for a relatively narrow definition of what constitutes “prejudice” sufficient to ground an action for judicial review.

Swanson v Manson, 1907 SC 426 per Lord Ardwell at 429

MacColl v Crofters’ Commission [2007] Housing LR 46, per Lord Malcolm.

See for example Glasgow Rape Crisis Centre v Secretary of State for the Home Department, 2000 SC 527 (in particular the latter at 534 per Lord Clarke. Compare, however, Wilson v Independent Broadcasting Authority, 1979 SC 351

Lord Hope of Craighead “Mike Tyson comes to Glasgow” [2001] Public Law 294

See McArthur v. Lord Advocate, 2006 SLT 170, OH per Lord Glennie at paras 13, 15:

“[C]ounsel emphasized that the petitioners in the present cases were relatives and therefore victims. Non-governmental organizations or public interest groups did not qualify for victim status in terms of the Convention. These actions could not be raised by anyone other than victims; and there were questions in Scots law as to the status required to raise an action by way of judicial review. The petitioners were not seeking money or compensation and had indicated that they had no present intention to raise an action for damages. These petitions were not about pecuniary gain. They were seeking to air a matter which should be aired in public, namely the whole manner in which blood transfusion was administered in Scotland since the mid 1980s.

…

I am satisfied that although the petitioners are relatives of the deceased, they have no financial interest in pursuing the actions. As I understood counsel for the petitioner’s submissions, the individual relatives were put forward as petitioners because it is they, rather than any pressure group, who have the appropriate status for judicial review proceedings in Scotland. I therefore consider that the “no private interest” test is satisfied.”

See HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=2006291182″R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 at para 74:

‘(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing

(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.”,

Section 31(3) of the Supreme Court Act 1981 provides that “the court shall not grant leave [for judicial review] … unless it considers that the applicant has a sufficient interest in the mater to which the application relates.”

In Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Limited [1982] AC 617 at 645

For a review of some of the more recent English cases see K. Gledhill “Standing, Capacity and Unincorporated Associations” [1996] Judicial Review 67 and C. Hilson and I. Cram “Judicial Review and environmental law – is there are coherent view of standing ?” (1996) 16 Legal Studies 1

See J. Mariott and D. Nicol “The Human Rights Act, Representative Standing and the Victim Culture” [1998] European Human Rights Law Review 730-741

R v. Secretary of State for the Home Department, ex parte the Fire Brigades Union and others [1995] 2 AC 513, HL

R v. Secretary of State for Employment, ex parte the Equal Opportunities Commission [1996] AC, HL

See R v. Her Majesty’s Inspectorate of Pollution, ex parte Greenpeace (No. 1) [1994] 4 All ER 321, CA on the application for an interlocutory injunction and R v. Her Majesty’s Inspectorate of Pollution, ex parte Greenpeace (No. 2) [1994] 4 All ER 329, QBD on the consideration of the merits of the application, including the question of applicant’s standing

R v. Secretary of State for Social Services, ex parte the Child Poverty Action Group and others [1989] 1 All ER 1047, CA

R v. Secretary of State for Foreign Affairs, ex parte the World Development Movement Ltd. [1995] 1 All ER 611. See I. Hare “Judicial Review and the Pergau Dam” [1995] Cambridge Law Journal 227

CO 1150/96, CO 220/96 R v. Minister of Agriculture, Fisheries and Food, ex parte Protestors Animal Information Networks Ltd., Latham J. unreported judgment of 20 December 1996

R v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275

R v. Sefton Borough Council [1997] 4 All ER 532

R (Countryside Alliance) v Attorney General [2008] 1 AC 719

R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312, HL per Baroness Hale at para 53

Regina (Corner House Research and another) v. Director of the Serious Fraud Office (JUSTICE intervening) [2008] 3 WLR 568, HL per Lord Bingham at 580:

“30 It is common ground in these proceedings that the Director is a public official appointed by the Crown but independent of it. He is entrusted by Parliament with discretionary powers to investigate suspected offences, which reasonably appear to him to involve serious or complex fraud and to prosecute in such cases. These are powers given to him by Parliament as head of an independent, professional service who is subject only to the superintendence of the Attorney General. There is an obvious analogy with the position of the Director of Public Prosecutions. It is accepted that the decisions of the Director are not immune from review by the courts, but authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator: R v Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136, 141; R v Director of Public Prosecutions, Ex p Manning [2001] QB 330, para 23; R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727, paras 63-64; Mohit v Director of Public Prosecutions of Mauritius [2006] 1 WLR 3343, paras 17 and 21 citing and endorsing a passage in the judgment of the Supreme Court of Fiji in Matalulu v Director of Public Prosecutions [2003] 4 LRC 712, 735-736; Sharma v Brown-Antoine [2007] 1 WLR 780, para 14(1)-(6). The House was not referred to any case in which a challenge had been made to a decision not to prosecute or investigate on public interest grounds.

31 The reasons why the courts are very slow to interfere are well understood. They are, first, that the powers in question are entrusted to the officers identified, and to no one else. No other authority may exercise these powers or make the judgments on which such exercise must depend. Secondly, the courts have recognised (as it was described in the cited passage from Matalulu v Director of Public Prosecutions )

‘the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits.’

Thirdly, the powers are conferred in very broad and unprescriptive terms.

32 Of course, and this again is uncontroversial, the discretions conferred on the Director are not unfettered. He must seek to exercise his powers so as to promote the statutory purpose for which he is given them. He must direct himself correctly in law. He must act lawfully. He must do his best to exercise an objective judgment on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice.”

R. (on the application of Edwards) v Environment Agency (No.1) [2004] 3 All ER 21 per Keith J. at paras 15-16, 21

R. (on the application of Edwards) v Environment Agency (No.2) [2009] 1 All ER 57, HL per Lord Hoffmann:

“[14] The application for judicial review, launched by Mr David Edwards, a resident of Rugby, on 28 October 2003, was based on three grounds, the third of which need not be considered because it was abandoned by amendment on 12 March 2004. The first was a discrete point on the European Council Directive (EEC) 85/337 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p 40) (the EIA directive), to which I shall return later. The second was an allegation that, in allowing the company not to use fabric filters for the kiln gases, the Agency had failed to ensure that it used BAT.

[15] In the course of the application, however, this ground of complaint was also abandoned and an entirely new one introduced. This concerned PM10 emissions from LLPS. In the case of these emissions, it could not be said that the Agency had failed to comply with its duty under reg 11(2)(a) to ensure that the company was using BAT. The application described in s 2.3.2 the various LLPS under the headings ‘(B) Raw Materials Handling, Storage and Preparation’, ‘(C) Fuel Storage and Handling’, ‘(E) Clinker Handling and Cement Milling’ and ‘(F) Cement Loading, Packing and Despatch’. In each case it was said that fabric filters were in use and that emissions were expected to be within the Agency’s indicative benchmark. It has never been questioned that this was BAT.

[16] Instead, the appellant’s complaint is that the Agency did not properly discharge its statutory obligation of public consultation before reaching a decision on the other limb of pollution control, namely, whether the plant, notwithstanding its use of BAT, would cause significant pollution (reg 11(2)(b)).”

R. v Somerset County Council, Ex p. Dixon HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=4724&FindType=g&SerialNum=1997256386″[1998] Env. LR 111

Terem Ltd, Chechetkin and Olius v. Ukraine, ECtHR, 18 October 2005 at para 28

Gakiyev and Gakiyeva v. Russia, 23 April 2009 at paras 161-2

Savage v South Essex NHS Trust [2009] 2 WLR 115, HL per Lord Scott of Foscote at 119

(HL Committee stage 24 November 1997, vol 583 column 830 ff)

“The purpose of the Bill is to give greater effect in our domestic law to the Convention rights.  It is in keeping with this approach that persons should be able to rely on the Convention rights before our domestic courts in precisely the same circumstances as they can rely upon them before the Strasbourg institutions.    The wording of Clause 7 therefore reflects the terms of the Convention which stipulates that petitions to the European Commission (or the European Court once the eleventh protocol comes into force) will be ruled inadmissible unless the applicant is a victim of the alleged violation. …. We are right to mirror the law as Strasbourg applies it. …. It is no part of the intention of this Bill to alter the standing rules in relation to judicial review in either England or Scotland.  It is no part of the intention of this Bill to impose uniformity on the Scotties courts – that is to say to be uniform with England and Wales – in relation to the rules of practice of English courts which I have described in permitting third party interventions by way of written brief.   It is part of the intention of this Bill to import the Strasbourg victim test in relation to complaints based solely on denial of Convention rights. That appears to us to be right in principle.”

….

(HL Third reading 5 February 1998, vol 585 column 810)

As we have said a number of times, the purposes of the Bill is to give further effect in our domestic law to our Convention rights, and it is in keeping with that approach that a person should be able to rely on those rights before our courts in the same circumstances that they can rely upon them before the  Strasbourg institutions, and not in different circumstances.   Bringing rights home means exactly what it says – to mirror the approach taken by the Strasbourg court in interpreting Convention rights.”

The position is different as regards the norms of customary international law which is automatically incorporated into the domestic law of Scotland: Lord Advocate’s Reference (No. 1 of 2000) re nuclear weapons, 2001 JC 143, HCJ. See too In re McKerr [2004] 1 WLR 807, HL(NI)) per Lord Steyn:

“49. …. Dame Rosalyn Higgins, “The Relationship between International and Regional Human Rights Norms and Domestic Law”, in Developing Human Rights Jurisprudence (1993), vol 5, pp 16-23 … observed, at p 20:

‘international law is part of the law of the land. Some rights contained in international human rights treaties are not the produce of inter-State contract, but antedate any such multilateral agreement. The treaty is merely the instrument in which a rule of general international law is repeated. It bears repetition in an international instrument, partly because relatively ‘new’ rights may also be included, and partly because the treaty may involve procedural undertaking for the states parties. But none of that changes the character of a given right as an obligation of general international law. Freedom from torture, freedom of religion, free speech, the prohibition of arbitrary detention, should all fall in that category. As such-and even were these rights not already secure through a separate domestic historic provenance-they would be part of the common law by virtue of being rules of general international law.”

There is also growing support for the view that human rights treaties enjoy a special status: Murray Hunt, Using Human Rights Law in English Courts (1998), pp 26-28. Commenting on Lewis v Attorney General of Jamaica [2001] 2 AC 50 Lawrence Collins J commented that ‘it may be a sign that one day the courts will come to the view that it will not infringe the constitutional principle to create an estoppel against the Crown in favour of individuals in human rights cases: ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 485, 496.

…

50 The rationale of the dualist theory, which underpins the International Tin Council case, is that any inroad on it would risk abuses by the executive to the detriment of citizens. It is, however, difficult to see what relevance this has to international human rights treaties which create fundamental rights for individuals against the state and its agencies. A critical re-examination of this branch of the law may become necessary in the future.

….

52 At a late stage of the appeal before the House I did wonder whether customary international law may have a direct role to play in the argument about the development of the common law. The idea was suggested to me by a valuable article: Andrew J Cunningham, ‘The European Convention on Human Rights, Customary International Law and the Constitution’ (1994) 43 ICLQ 537. The writer stated the following propositions, at p 538:

First, that treaties may generate rules of customary international law: the accepted view that unenacted treaties ‘cannot be a source of rights and obligations’ in England is thus effectively sidestepped, since it is not the treaty itself which is the source of rights. Second, that the numerous human rights treaties and other instruments, of which the European Convention is but one, have given or, at least, may give rise to rules of customary international human rights law. Third, that customary international law forms part of the common law of England. If these three be accepted, it follows that, to the extent that the content of any right encompassed in the European Convention is the same as its content in customary international law, the right in question will be recognised in English law as a part thereof.’

Along these lines there may be an argument that the right to life has long been recognised in customary international law, which in the absence of a contrary statute has been part of English law since before the 1998 Act came into force. One has to remember, however, that the procedural obligation recognised in McCann v United Kingdom 21 EHRR 97 only dates from 1995, i.e. 13 years after the deceased was shot and after the inquest in Northern Ireland was closed. It may be unrealistic to suggest that the procedural obligation was already part of customary international law at a time material to these proceedings. The point has not been in issue in the present case. It has not been researched, and it was not the subject of adversarial argument. It may have to be considered in a future case. The impact of evolving customary international law on our domestic legal system is a subject of increasing importance.”

See Philip Sales and Joanne Clement “International law in domestic courts: the developing framework” (2008) Law Quarterly Review 388-42:

“The general position in English law is that administrative decision-makers who have a discretion conferred upon them by statute are not obliged to comply with or have regard to the United Kingdom’s international law obligations when exercising their discretion, but that they may lawfully at their own choice elect to do so. (Brind [1991] 1 A.C. 696; Smith [1996] Q.B. 517 at 558; Launder [1997] 1 W.L.R. 839; Hurst [2007] UKHL 13. It was observed by Lord Denning M.R. in R. v Chief Immigration Officer, Heathrow Airport Ex p. Salamat Bibi [1976] 1 W.L.R. 979 at 985A, that it is not realistic to expect administrative decision-makers to know and apply all of the UK’s international obligations which might be relevant to their decisions.)

Put another way, the general position is that in relation to the exercise of a statutory discretion such international obligations are neither mandatory relevant considerations, nor mandatory irrelevant considerations, but are considerations which may be taken into account and treated as relevant at the option of the decision-maker (i.e. are considerations which fall within the class of optional relevant considerations identified by Cooke J. in CREEDNZ v Governor General [1981] 1 N.Z.L.R. 172 at 183; Re Findlay [1985] A.C. 318 at 334; Hurst [2007] UKHL 13 at [57]-[59]; and Al Rawi [2006] EWCA Civ 1279 at [131] in relation to the exercise of discretions which exist under the prerogative).

However, it is always a matter of construction of the relevant statute whether any consideration is to be treated as a mandatory relevant consideration, a mandatory irrelevant consideration or an optional consideration for the exercise of the discretion in question, so this general position may be departed from in particular contexts. (International obligations may in a particular context be mandatory relevant considerations: see, e.g. R. v Secretary of State for the Home Department Ex p. Norney, unreported, Dyson J., September 28, 1995, at pp.13-14 of the transcript; R. v Secretary of State for the Home Department Ex p. Fininvest SpA [1997] 1 W.L.R. 743; Hurst [2007] UKHL 13 at [57]-[58]. In another context, they may be mandatory irrelevant considerations, if Parliament has specified clearly what the decision-maker may and may not have regard to: see, e.g. R. (on the application of Marchiori) v Environment Agency [2002] EWCA Civ 3; [2002] Eu. L.R. 225 at [48])

If decision-makers do choose to have regard to the United Kingdom’s international law obligations when exercising their discretion, there is authority that they will be required by the courts to interpret them correctly –and the courts will therefore construe and apply treaty provisions themselves in such a case: see R. v Secretary of State for the Home Department Ex p. Launder [1997] 1 W.L.R. 839, HL”

Compare Regina (Hurst) v. London Northern District Coroner [2007] 2 AC 189 per Lord Brown of Eaton-under-Heywood at paras 55-59:

“55 Must a statutory discretion be exercised ‘to give full weight to the UK’s international obligations’? There are, of course, many dicta of high authority supporting the proposition that it is lawful to have regard to unincorporated treaty obligations in the exercise of a discretion. One such, in the context of the Convention, appears in Lord Bingham’s opinion in R v Lyons [2003] 1 AC 976, para 13:

‘Even before the Human Rights Act 1998 the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law.’ (Emphasis added.)

56 It is another thing, however, to say that the decision-maker is bound to have regard to such obligations and, moreover, (a necessary further part of the respondent’s argument), bound to give effect to them unless there is good reason not to. Such a contention appears to run flatly counter to this House’s authoritative decision in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696. It was there held that decision-makers are under no obligation to exercise discretionary powers conferred upon them in domestic law so as to comply with unincorporated international obligations. Of the argument that by the same token that international obligations will determine the construction of ambiguous legislation so too where a discretion can be exercised either so as to conform to or to infringe a basic human right it must be exercised so as to conform, Lord Bridge said, at p 748:

‘I confess that I found considerable persuasive force in this submission. But in the end I have been convinced that the logic of it is flawed. When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity. It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it. When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament’s aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function.’

Similar views are to be found in the other speeches. As, indeed, Neill LJ was later to observe in R v Secretary of State for the Environment, Ex p National Administrative and Local Government Officers’ Association (1992) 5 Admin LR 785, 798, only Lord Templeman thought that article 10 was ‘a relevant matter to be taken into account’. A series of earlier Court of Appeal decisions had been to the same effect: R v Chief Immigration Officer, Heathrow Airport, Ex p Salamat Bibi [1976] 1 WLR 979, Fernandes v Secretary of State [1981] Imm AR 1; Chundawadra v Immigration Appeal Tribunal [1988] Imm AR 161.

57 Some considerations are required to be taken into account by decision makers. Others are required not to be. But there is a third category: those considerations which the decision maker may choose for himself whether or not to take into account. As was stated by Cooke J in the New Zealand case of CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 183:

‘What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds the decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.’

A little later he added that even if the statute was silent,

‘there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers would not be in accordance with the intention of the Act.’

Lord Scarman in In re Findlay [1985] AC 318, 334 approved those two passages in Cooke J’s judgment as ‘a correct statement of principle’.

58 Applying that principle to the present case it seems to me quite impossible to say that the unincorporated international obligation on the United Kingdom here was ‘so obviously material’ to the coroner’s decision whether or not to resume this inquest that he was required to give it ‘direct consideration’. Still less in my judgment was he obliged to give effect to it, the very contention so roundly rejected in Brind.

59 Even, therefore, had the coroner recognised and felt able to satisfy the international law obligation upon the United Kingdom by reopening the inquest, I for my part would not hold his refusal to do so irrational or otherwise unlawful.”

Compare, pre-devolution, T, Petitioner, HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=4901&FindType=g&SerialNum=1996294042″1997 SLT 724, IH on the relevance of provisions of the ECHR prior to the incorporation of various of its provisions into domestic law by the Human Rights Act 1998 and the devolution statutes.

In Whaley v. Lord Advocate, 2008 SC (HL) 107 Lord Hope observed at 110-1

“ International obligations

[8] Mr. Friend submitted that, as observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law are all excluded by para 7(2)(a) of schedule 5 SA from the list of reserved matters, the Scottish Parliament was obliged to observe and implement international obligations in just the same way as it was obliged to implement and observe the Convention rights and Community law. That however is not how observing and implementing international obligations has been provided for by the Scotland Act. Section 126(10) SA provides that in the Act the expression ‘international obligations’ means any international obligations of the United Kingdom ‘other than’ obligations to observe and implement Community law and the Convention rights. The distinction that is inherent in the definition recognises that it is for Parliament, not the courts, to decide whether the international treaties should form part of domestic law. On the one hand there are the Convention rights which have been incorporated into domestic law by the Human Rights Act 1998 and Community law which has been incorporated into domestic law by the European Communities Act 1972 (cap 68). On the other hand there are international obligations of the kind that have not been incorporated. The international obligations that Mr. Friend relies on all fall into the latter category. None of them are enforceable in the domestic courts as part of the law of Scotland. Nor is the Scottish Parliament bound to implement them, although it may choose to do so as they are not among the reserved matters that are outside its legislation competence (SA, sec 29(2)(b)). As senior counsel for the respondent put it, the Scottish Parliament has the right so to legislate, not a duty to do so.

[9] Recognising that international obligations are not part of domestic law, the Scotland Act provides for them in a different way. Section 35(1) SA provides that the Secretary of State may make an order prohibiting the Presiding Officer from submitting a Bill for Royal Assent if it contains provisions which he has reasonable grounds to believe would be incompatible with any international obligations. Section 58(1) SA provides that the Secretary may also intervene at the stage when a Bill is introduced in the Parliament if he has reasonable grounds to believe that its introduction would be incompatible with any international obligations. He may so do by directing by order that that action shall not be taken. What these provisions do is enable the Secretary of State, who is a minister of the UK government, to intervene if he thinks it appropriate to do so in the interests, for example, of international comity. They do not limit the legislative competence of the Scottish Parliament in a way that can be decided upon by a court. I agree with both the Lord Ordinary and the Extra Division that the averments that refer to the international obligations are irrelevant.”

See Salah Abdadou v. Secretary of State for the Home Department, 1998 SC 504, OH. The idea of a legitimate expectation that international obligations will be respected was not the subject of consideration in Whaley v. Lord Advocate, 2008 SC (HL) 107

See Morgan v Hinton Organics (Wessex) Ltd [2009] Env LR 30 CA per Carnwath LJ at paras 19-49. See too R v Lyons [2003] 1 AC 976, per Lord Bingham at para 13:

‘Even before the Human Rights Act 1998 the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law.’

And per Lord Hoffmann at para

“[T]here is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&FindType=Y”Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283:

‘I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention].’ [....]

If the encroachment had been by a judge-made rule of common law or a judicial implication in a statute which did not expressly address the question, it would in theory have been open to the court to say that the previous common law rule or judicial interpretation had been wrong and that the law should rather be understood in a sense which conformed to the judgment of the ECHR.”

See by analogy with the then unincorporated the European Convention on Human Rights T, Petitioner, HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=4901&FindType=g&SerialNum=1996294042″1997 SLT 724, IH per Lord Hope at 733-4

“It is now clearly established as part of the law of England and Wales, as a result of decisions in the House of Lords, that in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the European Convention on Human Rights, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it: see HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&FindType=Y”R v Home Secretary, ex p Brind per Lord Bridge of Harwich at HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&FindType=Y”[1991]1 AC, pp 747H-748A . Similar views with regard to the relevance of the Convention were expressed by Lord Reid in HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&FindType=Y”R v Miah [1974] 1 WLR at p 694B-E , and by Lord Keith of Kinkel in HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&FindType=Y”Derbyshire County Council v Times Newspapers Ltd [1993] AC at pp 550D-551G. In HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&FindType=Y”Anderson v HM Advocate the opportunity was taken at 1996 SCCR, p 121; 1996 SLT, p 158 , to refer to the Convention and to Lord Bridge’s observations. But an opinion was reserved as to whether these observations were part of the law of Scotland also, as the court was not concerned with a matter of statutory interpretation in that case. It is however now an integral part of the general principles of European Community law that fundamental human rights must be protected, and that one of the sources to which regard may be made for an expression of these rights is international treaties for the protection of human rights on which member states have collaborated or of which they are signatories: see HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&FindType=Y”Stair Memorial Encyclopaedia, Vol 10 , “European Community Law”, para 95. I consider that the drawing of a distinction between the law of Scotland and that of the rest of the United Kingdom on this matter can no longer be justified. In my opinion the courts in Scotland should apply the same presumption as that described by Lord Bridge, namely that, when legislation is found to be ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, Parliament is to be presumed to have legislated in conformity with the Convention, not in conflict with it.”

In Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003-VI the Court observed at para 52-3

Neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent in dealing with this particular aspect.

53.  In the present case, even assuming that the environment has been severely damaged by the urban development of the area, the applicants have not brought forward any convincing arguments showing that the alleged damage to the birds and other protected species living in the swamp was of such a nature as to directly affect their own rights under Article 8 § 1 of the Convention. It might have been otherwise if, for instance, the environmental deterioration complained of had consisted in the destruction of a forest area in the vicinity of the applicants’ house, a situation which could have affected more directly the applicants’ own well-being.”

See Demir and Baykara v. Turkey (2009) 48 EHRR 54 at para 83). In Taşkın and Others v. Turkey, 10 November 2004 the European Court of Human Rights at para 119 expressly interpreted Article 8 ECHR in line with the principles set out in the Århus Convention as including the following positive obligations:

“Where a State must determine complex issues of environmental and economic policy, the decision-making process must firstly involve appropriate investigations and studies in order to allow them to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights and to enable them to strike a fair balance between the various conflicting interests at stake. The importance of public access to the conclusions of such studies and to information which would enable members of the public to assess the danger to which they are exposed is beyond question. Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process.”

See C-239/03 Commission v France [2004] E.C.R. I-9325at paras 25-31:

25 In accordance with case-law, mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements in so far as the provisions fall within the scope of Community competence (see, to that effect, Case 12/86 Demirel [1987] ECR 3719, paragraph 9, and Case C-13/00 Commission v Ireland [2002] ECR I-2943, paragraph 14).

26 From this the Court has inferred that, in ensuring compliance with commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement (Demirel, cited above, paragraph 11, and Commission v Ireland, cited above, paragraph 15).

27 In the present case, the provisions of the Convention for the protection of the Mediterranean Sea against pollution, signed at Barcelona on 16 February 1976 and approved on behalf of the European Economic Community by Council Decision 77/585/EEC of 25 July 1977 and the Protocol without doubt cover a field which falls in large measure within Community competence.

28 Environmental protection, which is the subject-matter of the Convention and the Protocol, is in very large measure regulated by Community legislation, including with regard to the protection of waters against pollution (see, in particular, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40), Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1) and Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1)).

29 Since the Convention and the Protocol thus create rights and obligations in a field covered in large measure by Community legislation, there is a Community interest in compliance by both the Community and its Member States with the commitments entered into under those instruments.

30 The fact that discharges of fresh water and alluvia into the marine environment, which are at issue in the present action, have not yet been the subject of Community legislation is not capable of calling that finding into question.

31It follows from the foregoing that the application of Articles 4(1) and 8 of the Convention and Article 6(1) and (3) of the Protocol to discharges of fresh water and alluvia into a saltwater marsh, those discharges not having been the subject of specific Community legislation, falls within the Community framework since those articles are in mixed agreements concluded by the Community and its Member States and concern a field in large measure covered by Community law. The Court therefore has jurisdiction to assess a Member State’s compliance with those articles in proceedings brought before it under Article 226 EC.”

Case C-427/07 Commission v. Ireland, 16 July 2009 at paras 2, 98-99

“2. Article 1 of Directive 2003/35 provides:

‘2. The objective of this Directive is to contribute to the implementation of the obligations arising under the Århus Convention [on access to information, public participation in decision-making and access to justice in environmental matters], in particular by: (a) providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment; (b) improving the public participation and providing for provisions on access to justice within Council Directive 85/337 [....]

80. [B]y its fifth argument, the Commission criticises Ireland for not having made available to the public practical information on access to administrative and judicial review procedures, as required by the sixth paragraph of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and the sixth paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35. [.....]

96. As regards the fifth argument, it must be borne in mind that one of the underlying principles of Directive 2003/35 is to promote access to justice in environmental matters, along the lines of the Århus Convention on access to information, public participation in decision-making and access to justice in environmental matters.

97. In that regard, the obligation to make available to the public practical information on access to administrative and judicial review procedures laid down in the sixth paragraph of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and in the sixth paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, amounts to an obligation to obtain a precise result which the Member States must ensure is achieved.

98      In the absence of any specific statutory or regulatory provision concerning information on the rights thus offered to the public, the mere availability, through publications or on the internet, of rules concerning access to administrative and judicial review procedures and the possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently clear and precise manner, that the public concerned is in a position to be aware of its rights on access to justice in environmental matters.

99      The fifth argument must thus be upheld.”

See for example Directive 2003/35/EC amends Directive 85/337/EEC on environmental impact assessments by inserting therein a new Article 10a which is in the following terms:

“[1] Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned: (a) having a sufficient interest, or alternatively, (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

[2] Member States shall determine at what stage the decisions, acts or omissions may be challenged. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.

[3] The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

[4] Any such procedure shall be fair, equitable, timely and not prohibitively expensive.

[5] In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.’

Litster v. Forth Dry Dock Engineering Co. Ltd., 1989 SC (HL) 96. See too Berkeley v Secretary of State for the Environment [2001] 2 AC 603 per Lord Hoffmann at pages 614-6:

“Article 10 (ex article 5) of the EC Treaty requires member states to “take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty. In Case C-435/97 World Wildlife Fund (WWF) v Autonome Provinz Bozen [1999] ECR I-5613 para 70 the European Court of Justice said that it followed that it was for the authorities of member states to

‘take all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment.’

The Court of Justice said, at paragraph 71, that the Directive confers directly enforceable rights upon citizens of the member state and in a case in which the discretion conferred by the provisions of the Directive had been exceeded (as by omitting altogether to consider whether an EIA should be required), individuals may rely upon the Directive before a court of a member state to obtain from the national authorities ‘the setting aside of the national … measures incompatible with those provisions.’

…

since the question of whether an application is a Schedule 2 application is primarily entrusted by regulation 2(2) to the Secretary of State, it is not difficult, in order to make regulation 4(2) effective, to imply into that regulation an obligation upon the Secretary of State to consider the matter. So to construe the regulation would be in accordance with the obligation of a member state under the principle in Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135, 4159, para 8, to interpret domestic law “as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter”.

….

The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. In a later case (Case C-72/95) Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, 5427, para 70), Advocate General Elmer made this point again:

,Where a member state’s implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made the subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard.’

Perhaps the best statement of this aspect of an EIA is to be found in the UK government publication Environmental Assessment: A Guide to the Procedures (HMSO, 1989), p 4:

‘The general public’s interest in a major project is often expressed as concern about the possibility of unknown or unforeseen effects. By providing a full analysis of the project’s effects, an environmental statement can help to allay fears created by lack of information. At the same time it can help to inform the public on the substantive issues which the local planning authority will have to consider in reaching a decision. It is a requirement of the Regulations that the environmental statement must include a description of the project and its likely effects together with a summary in non-technical language. One of the aims of a good environmental statement should be to enable readers to understand for themselves how its conclusions have been reached, and to form their own judgments on the significance of the environmental issues raised by the project.’”

See Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651

Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd, 15 October [2009] ECR I-nyr at paragraphs 21, 45, 48-9

Case 33/76 Rewe v Landwirtschaftskammer für Saarland [1976] ECR 1989

Case 45/76 Comet v Produktschaap voor Siergewasen [1976] ECR 2043

Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595.

See, inter alia, Case C 87-89/90 HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=1994261418″Verholen [1991] ECR I-3757 at [24]; and C-13/01HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=2003075791″Safalero [2003] ECR I-8679at [50]

C-50/00 P HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=2002054105″Unión de Pequeños Agricultores v Council [2002] ECR I-6677 at [41]

See, inter alia, Case 33/76 Rewe v Landwirtschaftskammer für Saarland [1976] ECR 1989 [5]; Case 45/76 Comet v Produktschaap voor Siergewasen [1976] ECR 2043 at [13]-[16]; Case C-312/93 HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=1994387002″Peterbroeck [1995] ECR I-4599 at [12]; Case C-453/99 HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=2001779705″Courage and Crehan [2001] ECR I-6297 at [29]; C-467/01 HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=2003075132″Eribrand [2003] ECR I-6471 at [62]; and C-13/01HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=2003075791″Safalero [2003] ECR I-8679 at [49])

Case C-432/05 HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=2011665294″Unibet (London) Ltd v Justitiekanslern [2007] ECR I-2271 (Grand Chamber) at paras 38-44, 66-7, 79-82

See Cases 201 and 202/85 HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=1988181836″ Klensch v. Secrétaire d’État à l’Agriculture et à la Viticulture [1986] 3417 at paras 8-11:

“8. Under Article 40(3) of the EEC Treaty the common organisation of the agricultural markets to be established in the context of the Common Agricultural Policy must ‘exclude any discrimination between producers or consumers within the Community’. That provision covers all measures relating to the common organisation of agricultural markets, irrespective of the authority which lays them down. Consequently, it is also binding on the Member States when they are implementing the said common organisation of the markets.

9. That finding is borne out by a consistent line of cases … in which the Court held that the prohibition of discrimination laid down in Article 40(3) of the EEC Treaty is merely a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law. That principle requires that similar situations shall not be treated differently unless differentiation is objectively justified.

10. Consequently, where Community rules leave Member States to choose between various methods of implementation, the Member States must comply with the principle stated in Article 40(3). That principle applies, for instance, where several options are open to the Member States as in this case, where they may choose as the reference year 1981, or, subject to certain conditions, either 1982 or 1983.

11. It follows that in such circumstances a Member State may not choose an option whose implementation in its territory would be liable to create, directly or indirectly, discrimination between the producers concerned, within the meaning of Article 40(3) of the treaty, having regard to the specific conditions on its market and, in particular, to the structure of the agricultural activities carried out in its territory.”

See C-313/99 Mulligan and others v. Minister for Agriculture and Food, Ireland [2002] ECR I-5719 at paras 35-6:

“35. Third, it is settled case-law that where Community rules leave Member states to choose between various methods of implementation, the Member States must exercise their discretion in compliance with the general principles of Community law (Joined HYPERLINK “http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=1988181836″ Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 10).

36. Consequently, a clawback measure such as that at issue in the main proceedings must be established and applied in compliance with the principles of legal certainty and protection of legitimate expectations …. Moreover, it must be proportionate to the aim pursued … and applied without discrimination (see, to that effect, in particular Klensch and Others, paragraph 8). Similarly, such a measure must respect fundamental rights….”

See Case 8/88 Commission v Germany [1990] ECR I-2321 at paragraph 13:

“In that connection, it should be observed that it is for all the authorities of the Member States, whether it be the central authorities of the State or the authorities of a federated State, or other territorial authorities, to ensure observance of the rules of Community law within the sphere of their competence. However, it is not for the Commission to rule on the division of competences by the institutional rules proper to each Member State, or on the obligations which may be imposed on federal or Länder authorities. It may only verify whether the supervisory and inspection procedures established according to the arrangements within the national legal system are in their entirety sufficiently effective to enable the Community requirements to be correctly applied.”

See DEFRA Aarhus Convention Implementation Report (April 2008) at pages 26-7

“Adequate and effective remedies, including injunctive relief in appropriate cases, are available. In England and Wales an applicant/claimant must demonstrate sufficient interest and an arguable case in law to access judicial review proceedings (see ref to where they meet the criteria laid down in national law). This ‘interest’ is interpreted very widely. In Scotland, the claimant must show both title and interest, which means that a party has to show that there is some legal capacity and a direct interest in the subject matter. Some changes have therefore been needed to the Scottish law as a result of the requirements of Directive 2003/35/EC that NGOs should be deemed to have sufficient interest to access review proceedings, and these changes have been made in transposing Directive 2003/35/EC.

Research evidence from the Commission to underpin its draft Directive on access to justice in environmental matters (see HYPERLINK “http://europa.eu.int/comm/environment/aarhus/index.htm” http://europa.eu.int/comm/environment/aarhus/index.htm ) puts the UK among those Member States that take an ‘extensive approach’ to legal standing before the administrative courts. This analysis suggests that, in recent years, the English courts have given an expansive interpretation to the criterion of ‘sufficient interest’ for obtaining a hearing before the courts. It gives examples of environmental cases taken by a wide variety of complainants, including established NGOs, ad hoc pressure groups and individuals reflecting a community concern, in which legal standing has been granted because of the relevance of wider public interests.

….

Under Article 9(2) of the Convention, non-governmental organisations which promote environmental protection and which meet requirements under national law are deemed to have ‘sufficient interest’ to engage in review procedures. (To review the legality of an authority’s application of law but not to challenge the merits or substance of a case). In England, Wales and Northern Ireland, if the interest of an applicant is not direct or personal, but is a general or public interest, it will be for the courts to determine whether or not the applicant has standing in accordance with a number of factors including the level of public importance of the issues raised and the applicant’s relationship to those issues. In determining whether public interest groups or NGOs specifically have sufficient interest to bring a challenge, the court will consider a number of factors including the merits of the challenge, the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger, the nature of the breach and the role played by the group or body in respect of the issues in question. The criteria have come to be applied liberally; if an applicant has insufficient private interest in bringing an application, provided he raises a genuine and serious public interest, he will have standing.

In Scots law, title and interest (to be heard by a court) is a matter of substantive law, not a procedure, so the legislation transposing EU Directive 2003/35/EC included provision giving sufficient interest to NGO’s promoting environmental protection.

Paragraph 3

If an applicant has a direct personal interest in the outcome of the claim, he will normally be regarded as having sufficient interest in the matter. The term ‘interest’ includes any connection, association or interrelation between the applicant and the matter to which the application relates.

Paragraph 4

For public interest cases the Legal Services Commission (LSC) ( HYPERLINK “http://www.legalservices.gov.uk” http://www.legalservices.gov.uk ) has revised its guidance when looking at whether there is an alternative source of funding available for cases which have a significant wider public interest. The definition of a public interest case is that it could bring benefits for a significant number of other people, or where a public body may have abused its power. Public interest could also include cases that raise novel or significant points of law. The revised guidance recognises the fact that contributions to funding can only be considered where there exists an identifiable group from whom they can be collected. Further, the more intangible the benefits, the less it may be reasonable for the LSD to expect a substantial contribution. Any contributions to funding should also be capped to an agreed level at the outset of the case, as it is recognised that it may be unrealistic to revert back to the funded clients for further contributions as cost increases, or the case goes to appeal. Scotland advise us that their system complies with the requirements of article 9(4).”