IN Walton v Scottish Ministers [2012] UKSC 44, [2013] P.T.S.R. 51 the Supreme Court addressed two significant public law issues: (i) locus standi in Scottish judicial review; (ii) the discretion to refuse relief for breach of EU norms.
Mr Walton challenged the validity of schemes and orders made by the Scottish Ministers under the Roads (Scotland) Act 1984 enabling construction of a new road network in the vicinity of Aberdeen. His principal argument, that Ministers had not undertaken public consultation on one element of the network as required by the Strategic Environment Assessment Directive (OJ 2001 L197/30) (SEAD), failed. The court nonetheless considered issues of standing and relief.
The traditional approach to standing in review proceedings in Scotland was no different in principle from that in private law (though the test was capable of more flexible application on review): the petitioner needed to demonstrate “title and interest”. This test, generally requiring possession of a right and prejudice to one's interests, was synonymous with a “private law” model of adjudication, within which the focus is individual rights.
This approach received its coup de grâce in AXA General Insurance Ltd. v HM Advocate [2011] UKSC 46, [2012] 1 A.C. 868. The Supreme Court decided that the test for standing on review ought to be recast in terms of “interests”, de-coupling standing in public law from that in private law, and bringing the standing rule broadly in line with the malleable English test of “sufficient interest”. The court saw the “public interest involved in judicial review proceedings” as significant, the primary public interest being that in preservation of the rule of law (at [169]). Because preservation of the rule of law goes well beyond protection of private rights, a rights-based standing rule was “incompatible with the courts' [supervisory] function” (at [169]). The court's reasoning suggested that, consonant with the English position, individuals and organisations could now be accorded standing in certain contexts to challenge the legality of administrative action despite not being directly affected. AXA thus signalled a move from a “private law” to a “public interest” model of standing, aligning the approach to locus standi with the functions of review.
Walton realises this model, confirming a role for interest groups and concerned citizens. The Extra Division observed that Walton would not have been accorded standing in review proceedings (this was obiter as he had brought his challenge via a statutory procedure). These dicta were disapproved on appeal. Lord Reed recalled that AXA had eschewed “an approach which presupposed that the only function of the court's supervisory jurisdiction was to redress individual grievances”, and affirmed that there would be cases where an individual was granted standing “simply as a citizen” (at [90], [94]). The environmental context was a paradigm example of where a broader approach was required; protection of the environment was a “legitimate concern to everyone”, while confinement of standing to those whose personal interests were affected would mean that unlawful action which, say, threatened the habitat of an osprey would go unchecked: “someone has to be allowed to speak up on [the osprey's] behalf” (at [152]).
The court found that Walton would have had standing. It considered factors similar to those taken into account by English courts in determining whether unaffected individuals or groups ought to be accorded standing, further suggesting an alignment of approach. These included that Walton had participated in public consultations on the road network; resided in the vicinity of the network, in an area which would incur greater traffic; was chairman of an organisation formed to oppose the network, and active in local environmental organisations. Lord Hope, offering general guidance, emphasised the importance of a challenger having a genuine concern for and sufficient knowledge of the subject-matter of the challenge. At least in the environmental context it would normally be well-informed bodies, such as the Scottish Wildlife Trust, that “one would look” to, albeit “that there has to be some room” for genuinely concerned and informed individuals (at [153]).
Two observations are pertinent. First, an influential narrative of the development of English judicial review holds that liberalisation of standing from the late 1970s onwards resulted in a greater number of challenges initiated by groups seeking to push legal boundaries in pursuit of political ends, which in turn placed pressures on the courts to broaden the grounds of review. In Scotland the pressures have worked in reverse: development of a distinct body of public law imbued with a public interest ethos placed pressure on the courts to develop standing rules to give effect to the aims of the substantive law (AXA, at [59], [171]).
Secondly, in neither AXA nor Walton did the court, in effectively reading across the English approach, pay regard to significant contextual differences between jurisdictions. One difference is the lack of restrictions on accessing review in Scotland. In England the permission stage and short three-month time limit counterbalance liberal standing rules. In Scotland there is no permission requirement or set time limit. Liberalisation of standing will inevitably raise anxieties about a flood of claims leading to administrative disruption and diversion of public resources. However, such concerns may not have a chance to materialise. The Scottish Government has subsequently produced draft legislation designed to transplant the English safeguards: Courts Reform (Scotland) Bill 2013, s. 84.
As is so often the case in judicial review, an expansionist trend is counterbalanced by emergence of a control device. In Walton it was the assertion of remedial discretion in the context of breaches of EU law. Lord Carnwath propounded that the discretion to refuse relief at common law applies equally in the case of breach of EU procedural norms, such as requirements for environmental impact assessments (EIAs) or public consultations where proposed infrastructure projects pose environmental risks.
This is a gamble. How refusal of relief for breaches of EU norms would be received at Luxembourg depends on whether the CJEU views the discretion as within the principle of member state procedural autonomy, or as a transgression of the effectiveness principle: exercise of EU rights ought not to be impossible in practice or excessively difficult. Predictions are tricky given these principles are rather indeterminate. The CJEU has taken an ad hoc approach to their application. The court's relative emphasis on autonomy versus effectiveness has fluctuated markedly over time, and much depends on how domestic courts exercise the discretion.
Notwithstanding such uncertainties, it is difficult to interpret past cases as providing a firm foundation for mainstreaming a general remedial discretion. In Inter-Environnement Wallonie ASBL v Région Wallone [2012] 2 CMLR 21 the CJEU considered it exceptional merely to allow domestic courts to briefly postpone, subject to strict conditions, annulment of an order made in breach of SEAD in unusual circumstances where immediate annulment would have caused the member state to commit a separate breach of EU law, and postponement positively promoted the environmental goals of SEAD.
A further indication that the gamble may not pay is the CJEU's emphasis on context in scrutinising remedial practices. EU environmental Directives place heavy emphasis on public participation, environmental protection, a precautionary approach, and integration of environmental concerns into decision-making. Requirements for consultation or EIAs are not “merely” procedural, but of the very essence of such measures. It seems plausible that the CJEU would take a “hard look” at a practice of refusing relief for breaches of requirements that go to the very heart of the EU regime for environmental protection.
In this light the approach in the earlier decision of Berkeley v Secretary of State for the Environment [2001] 2 A.C. 603 seems preferable. The case concerned non-compliance with procedural norms in an environmental Directive. Their Lordships emphasised the duty on member states under Article 10 EC (now Article 4(3) TEU) to take all appropriate measures to ensure fulfilment of EU obligations, and held that unless the violation was negligible the discretion to refuse relief altogether was virtually non-existent. In Walton Lord Carnwath sought to distinguish Berkeley on various grounds. But the speeches clearly enunciate principles of general application, while the later decision in R. (Edwards) v Environment Agency [2008] UKHL 22, [2008] 1 W.L.R. 1587, which might be interpreted as a retreat from Berkeley, entailed no breach of EU law.
The key benefit of Berkeley is that it established a bright-line rule, which nullifies the possibility of overzealous or inconsistent withholding of relief that comes with discretion, and which risks breach of the effectiveness principle and the EU principle of certainty. In Walton there were indications that the discretion is narrow: Lord Hope said that before relief could be denied there must be “good grounds” for believing grant of relief would cause “very great” prejudice to public interests (at [156]). However, such exhortations may not be observed in practice, especially in a discretionary context, and are open to interpretation. Indeed, there are myriad cases in which judges have emphasised the narrowness of the remedial discretion while denying relief; the potential for this seems acute where economic and political interests in large infrastructure projects are set against an individual's complaint of procedural irregularity. Further, Lord Carnwath indicated the threshold for refusal may not be so high, observing that relief may be withheld where the individual petitioner suffers no significant prejudice. With respect, denying relief on this basis ignores the broader concerns of environmental Directives, and such an individualist focus seems out of place within a public interest conception of review.
Lastly, Berkeley avoids the sorts of rule-of-law concerns that dog discretionary remedialism, and the “doublespeak” in emphasising the importance of preserving the rule of law, while allowing unlawful decisions to stand.
