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

R (ClientEarth No.2) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J, 21 November 2016, transcript awaited

A quick follow-up ruling to the judgment of 2 November (here) in which the UK’s air pollution plans under EU and domestic laws were found wanting by the Administrative Court. The pollutant was nitrogen dioxide – a major product of vehicle exhaust fumes. 

This Monday’s hearing was to decide precisely what the Government should be ordered to do in respect of the breach. The judgment was extempore, but the short reports available (e.g. here) suggest that the ruling is of some interest. 

The parties had already agreed that it was unnecessary  to quash the existing plan, which could remain in place until the following year whilst DEFRA prepared a new plan – presumably on the basis that a defective plan was better than no plan at all.

This week’s disputed issues related to timing for a new plan and whether and how the court could or should keep a watchful eye on Governmental progress.

Timing

The judge ordered that a draft modified Air Quality Plan should be produced on 24 April 2017 . The new plan should be published and sent to the European Commission by 31 July 2017. The UK remained in breach of Directive 2008/50 which had to be complied with as soon as possible. The Government had evidently argued for a longer period; the court thought that a shorter consultation period than was usually required was entirely justified in the circumstances. The production of a final report should be regarded as a priority for the government – the need was

paramount

Oversight

As to oversight, the judge considered that the parties should be able to return to court if legal issues arose in the course of preparing the new plan – in legal speak, there should be ” liberty to apply”. However, this should not be extended too far. Such a liberty to apply could not enable fresh applications and fresh proceedings in a fresh claim.

The distinction here between existing proceedings and future ones is important. It is  not necessarily easy to draw in practice, as can be seen from the cases referred to by the judge, in particular R. (Yousuf) v Secretary of State for Foreign and Commonwealth Affairs. In Yousuf, the Foreign Secretary had agreed to reconsider a passport application. The claimant wanted the proceedings to be stayed whilst this was done. Holman J disagreed. He held that it was wrong in principle that a public authority should have to reconsider a decision afresh

with the court looking over its shoulder. Judicial review did not exist to regulate or micromanage public authority decision-making. It existed to consider the lawfulness or rationality of a decision which had already been made.

On the facts of that case, the proceedings were not stayed. To do so, said the judge, would have risked blurring  the important distinction in decision-making between public authorities and the court.

On our case, however, one can readily see why Garnham J thought that more was required. The UK had long been in breach of EU law and the impugned plan seemed to be the latest in a  series of feet-dragging attempts to put off the evil day. A judge breathing down the neck of Government is exactly what the public interest required.

I dare say this will not be the last time the dispute comes before the court – most of the posts listed below concern earlier toings and froings of this litigation over the last 5 years. Reducing NOx emissions, though plainly in the public interest given their impact on people’s lives (literally – c.23,500 deaths a year), is far from straightforward to achieve, and requires some considerable political will.

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