The Law and Policy

The protection of the environment is mostly governed by the realm of public law through administrative agencies whose powers are exercised under statute and consequential delegated legislation. It is necessary that deeds and misdeeds of such agencies be controlled. Judicial review proceedings represent a controlling through which individual and public rights can be presented against the action of the administrative. The primary concern of the courts is whether the administrative action has violated statutory provisions; and has produced decisions suffering from procedural irregularities or inconsistent with the rules of natural justice.

In common law countries individuals aggrieved by the acts of such agencies are empower to approach the court for review of administrative decisions. The procedure for judicial review is to be found in schedule1 of the Civil Procedure Rules 1998. The CPR has introduced the requirement of equal footing for all parties a significant change clearly favourable to plaintiffs since in certain situations they may be assisted by the courts to obtain documents on which they couldn't have access to otherwise. Amongst other minor procedural changes it has also replaced the old requirement of prior notice and disclosure of evidence to any other party11.

In order to bring a claim for judicial review, the applicant must show that he has a 'sufficient interest' in the case; that he has made the application 'promptly' and without delay; and that he has an arguable case for which no other adequate remedy was available. Whether an applicant succeeds in satisfying the above requirements, is depending upon the discretion of each judge since clear guidelines are generally lacking. This discretion, in addition to a consideration of the extended costs involved, makes applicants further uncertain on applying for such an action.

It is essential to mention that legal aid is unavailable in judicial review, except in case brought by children applicants. The rule that the applicant is obliged to pay the costs of the other side is also to be taken into consideration by individual litigants. Consequently, it is rather impossible even for a spirited individual to consider of applying for judicial review. The most common legal advice in such occasions would encourage the individual to lobby certain parliamentary members or refer the case to an environmental organisation.

It is obvious, that environmental cases tend to be extremely complex involving scientific and technological evidence; and as such, are much more efficiently dealt with by environmental associations which have the means and the expertise to deal with them, rather than by individuals. In addition, in actions brought by individuals, arguments are often poorly elaborated. This makes judges reluctant or even unable to return a decision on the substance of the case. It is fortunate in this respect the fact that English judges are demonstrating a willingness to recognise sufficient standing to environmental organisations.

In the Rosa Theatre Trust case12 "sufficient interest" was narrowly interpreted by Schiemann J holding that only the land owner or the possessor of a personal right or interest would be sufficiently aggrieved to be permitted a judicial review. However, in Inland Revenue case13, it was recognised that if locus standi is not granted to organisations or to someone who doesn't have a direct interest or a right, the misuse of power by the executive will remain unchallenged and illegality will spread. This approach was embraced by Lord Diplock in the World Movement case14.

Thus, in THORP15, Otton J concluded that Greenpeace had an interest in the activities at Sellafield of British Nuclear Fuels Plc as the representator of 2,500 out of 400,000 supporters of the organisation who came from Cumbria and had individual interest in the case. 16 Nevertheless, in R v Secretary of State for Trade and Industry, where Greenpeace alleged that the UK government failed to implement Annex 1 of the Habitat Directory, and thought to be acting as a protector of the public interest, the application for judicial review was refused on grounds of delay, although locus standi was recognised.

This case illustrates the argument put forward by many authors that "delay is the new standing"17. It also provides evidence to the argument that in cases adjudicated for the public interest, with no readily identifiable specific group of people whose interests are affected, the judges will be reluctant to decide on the substance of the case and when they do they are taking into account mostly economical factors rather than environmental ones.

The inadequacy of judicial review in some cases is mainly due to the fact that, the judiciary is the guardian of legality rather than being primarily a defender of citizen's rights from public actions; and is obliged to take appropriate considerations of substantive factors such as policies. However, with the advent of the Human Rights Act 1998 and the introduction of the European Convention on Human Rights which came into domestic law in 2000, recourse to judicial review from environmental organisation representing private rights is gaining force since community law gives rise to individual rights which national courts ought to protect.

Concluging ,for the judiciary to achieve a higher level of environmental protection, a legal value to environmental assets should be considered. Untill this moment comes, the creation of a multi-faceted tribunal which combines the services of existing courts, tribunals and inspectors appears to be an easier objective to be accomplished and should soon be attempted.

BIBLIOGRAPHY

1. Stuart Bell and Donald McGillivray (2000) Environmental Law: The Law and Policy Relating To The Protection Of The Environment, Blackstone Press Limited. 2. Rosalind Malcolm (1994) A Casebook to Environmental Law, Sweet & Maxwell London. 3. Leonor Moral Soriano (2001) Environmental 'Wrongs' and Environmental Rights: Challenging The Legal Reasoning Of English Judges, Oxford University Press 4. Hodgson John & Lewthwaite John (1998) Cases and Materials, Law of Torts, Blackstone Press Limited. 5. Donald McGilivray and John Wightman, Private Rights and Environmental Protection in The Critical Lawyers' Handbook 2, edited by Paddy Ireland and Per Laleng (1997), Pluto Press.