Introduction
We are witnessing catastrophic declines in plants and animals at both UK and global levels. Over half of all UK species declined between 1970 and 2013 (with 40% showing strong or moderate declines) and of the nearly 8,000 species assessed using modern Red List criteria, 15% are extinct or threatened with extinction from Great Britain. A new measure assessing how intact a country’s biodiversity is, suggests that the UK has lost significantly more nature over the long term than the global average and suggests that we are among the most nature-depleted countries in the world. Many factors have resulted in changes to the UK’s wildlife over recent decades, but the RSPB’s State of Nature 2016 Report concludes that policy-driven agricultural change was by far the most significant driver of declines. Climate change has had a significant impact too, and remains one of the greatest long-term threats to nature globally. WWF’s Living Planet Report states that we are entering a new era in Earth’s history: the Anthropocene – an era in which humans rather than natural forces are the primary drivers of planetary change . In 2009, the director of the Stockholm Resilience Centre (SRC), Johan Rockström, and 28 internationally renowned scientists, identified nine processes that regulate the stability and resilience of the Earth system . Crossing these boundaries increases the risk of generating large-scale abrupt or irreversible environmental changes. In 2015, SRC research concluded that four of the nine planetary boundaries have been crossed as a result of human activity including climate change, loss of biosphere integrity (biodiversity loss and extinctions), land-system change and altered biogeochemical cycles (phosphorus and nitrogen). Not only do we have a moral obligation to save nature, it provides us with essential and irreplaceable benefits that support our welfare and livelihoods. There has never been a greater need for a strong legal basis to reverse biodiversity loss and improve animal welfare.


A New Environment Act
Everyone, and nature itself, should have the legal right to live in an environment adequate to their health and well-being. Such a right for every person of present and future generations already exists in Article 1 of the UNECE Aarhus Convention. However, while the UK ratified the Aarhus Convention in 2005, it also submitted a Declaration limiting any legal rights enjoyed by civil society to the three pillars of the Convention, concerning the right of access to environmental information, public participation in decision-making and access to justice in environmental matters. We therefore need an Act - similar to the Human Rights Act 1998 - that creates a right for present and future generations, and nature itself, to live in an environment adequate to their health and well-being.
The Act should also recognise, and enforce adherence to, planetary boundaries and environmental principles. The Government has recently recognised the importance of a number of EU environmental principles in the EU (Withdrawal) Act 2018, but neither the list of principles in the Act - nor the obligation to comply with them - go far enough. The environmental principles to be included in a new Environment Act
should include all those listed in the EUWA 2018 and other recognised principles of international environmental law. These include the non-regression principle - an emerging principle of international law 10 as acknowledged by the International Union for Conservation of Nature (IUCN), which provides that there should be no weakening of environmental standards in law or lowering of environmental ambition in policy-making. The principle can also incorporate the idea of “progression”, in that environmental standards should be continuously improving towards a stated objective (as in the Climate Change Act 2008). Other examples of environmental principles that should be in the new Environment Act include (but are not limited to):
the “no deterioration” principle as given legal status in the Water Framework Directive;11
the principle that full regard should be paid to the welfare requirements of animals, recognising
that animals are sentient beings (currently enshrined in Article 13 of the Treaty on the Functioning of the European Union (TFEU));
12

the duty to cooperate with international and EU partners in accordance with transboundary obligations, as reflected in the United Nations Convention on the Law of the Sea (UNCLOS), the 13 Convention on Biological Diversity (CBD) and the 1979 UN Convention on Long-Range Transboundary Air 14
Pollution;15
Impact assessment – see, for example, the UNECE Espoo Convention and the CBD; 16 17
Transparency – see the Marine Strategy Framework Directive;18
Ecosystem approach – this is highlighted in relation to fisheries in the Government’s 25 Year Plan,19 the Common Fisheries Policy Regulation and the CBD (in situ conservation); 20 21
Sustainable use and the conservation of biodiversity – see the Marine Strategy Framework Directive 22 and the Habitats Directive.23
The Act should impose a duty on Ministers of the Crown, public bodies and bodies performing public functions to respect planetary boundaries and act in accordance with the environmental principles in the exercise of their statutory duties, thus giving the principles a level of certainty and endurance currently enjoyed by EU principles under the Treaties. The duty to comply with the principles would encompass central and local Government, bodies such as the Environment Agency and utilities performing public functions such as privatised water companies. The new Act should also include duties to restore habitats and species to favourable conservation status and recover terrestrial, aquatic and marine ecosystems to good ecological status. In order to achieve these objectives, the Act must include ambitious, measurable and legally binding goals for nature’s recovery to ensure that the natural environment is healthy, resilient and sustainable for the benefit of people, plants and wildlife. In particular, new legislation must build on the obligations and objectives already enshrined in domestic legislation, developing the ‘outcome-focused’ approach of EU laws such as the Habitats and
Species Directive (e.g. the duty to achieve "favourable conservation status" for listed habitats and species listed in the Directive and the Bonn Convention), and the Water Framework Directive (the duty to
24 25 achieve "good ecological status" in respect of water bodies). A statutory duty to meet the commitments 26of international environmental agreements, such as the Biodiversity Convention’s Aichi Targets, the Paris 27 Agreement on Climate Change, the World Organisation for Animal Health and the UN’s Sustainable 28 29 Development Goals through cooperation, consultation, action, monitoring and reporting is also 30 fundamental to achieving these outcomes.

A pivotal component of the new Act would also be empowering civil society to defend wildlife through strong environmental rights. This includes the right to environmental information (the right to know), the right to engage in decisions affecting the environment (the right to participate) and, ultimately, the right to take legal action against those whose decisions and activities threaten the environment (the right to challenge). In this way, all three pillars of the UNECE Aarhus Convention would be properly and coherently enshrined in domestic law. Presently, only the requirements of the first two pillars of the Convention concerning access to environmental information and public participation in decision-making have been 31 32 transposed into UK law as they are the subject of EU Directives. There is no EU Directive covering Article 9 of the Convention (which concerns access to justice) and the Court of Justice of the European Union (CJEU) has held that although Member States must give the fullest extent possible to the provisions of Article 9(3) of the Convention, it does not have “direct effect”. This means that claimants cannot rely on the access to justice provisions of the Convention in domestic courts. It is only by enshrining all three pillars of the 33 Convention in UK law that this long overdue deficiency will be recognised.

 

There are also numerous deficiencies in the manner in which the UK has implemented the requirements of the Aarhus Convention. This includes, for example, the failure to require the Government to consult the public during the preparation of Executive Regulations and/or Generally Applicable Legally Binding Normative Instruments (Article 8 of the Convention). In 2017, Friends of the Earth submitted a Communication to the Aarhus Convention Compliance Committee (ACCC) concerning the UK Government’s failure to consult the public on the content of the “Great Repeal Bill” (the European Union (Notification of Withdrawal) Bill 2017) subsequently passed by Parliament on 16th March 2017. Other deficiencies include 34 a failure to comply with Articles 9(2), (3) and (4) of the Convention with regards to the cost of legal proceedings and the intensity of judicial review (see later) and anomalies concerning the disclosure of environmental information where it would adversely affect international relations, defence, national security or public safety even when that information concerns emissions. There are more deficiencies – but transposing the requirements of the Convention into UK law would provide the Governments of the UK with the opportunity to address them.
Finally, any new Act should also provide for all protection measures currently afforded to animals under EU regulations to be transposed into UK law. It should ensure that public funds, where used, incentivise and reward best practice in animal welfare in the UK, thus setting the highest standards for our internal markets. It should also ensure that UK welfare standards are met in trade deals and overseas investment policies, and that where possible trade deals support enforcement of animal protection laws. The definition of “animal” in the UK’s Animal Welfare Acts and in the EU-derived regulations on Welfare at the Time of Killing should also be extended to include decapod crustaceans and cephalopods, in recognition of the growing scientific evidence that they can experience suffering. This would be in line with the approach already taken by countries such as Norway, New Zealand and Switzerland.
35 The Government would say that such an Act is an idealistic impossibility. They said the same thing about a Marine Act in the early 2000s - until environmental NGOs published their own versions and enough people started calling for one. The result was the Marine and Coastal Access Act 2009 (for England and Wales), followed by similar acts in Scotland and Northern Ireland. An Environment Act incorporating the above 36 ingredients is ambitious but it is not impossible – it just requires enough political will, research, creative drafting and a whole lot of public support. 

The Rule of Law and the Judicial System
The rule of the law is a principle of the (uncodified) UK constitution that means politicians govern within their powers, the law applies equally to all and that the law is certain. It is the foundation of any 37  democracy. In the Supreme Court case of Alconbury,38 Lord Hoffman described the significance of Judicial Review in the following terms: ‘The principles of Judicial Review give effect to the Rule of Law. They ensure that administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by Parliament’ . However, my experience of Judicial Review is that it is a wholly blunt instrument – at least from the point of view of those seeking to rely on it. The intensity of Judicial Review For the claimant, the central weakness of JR is that it is rarely concerned with the “merits” of a decision, or whether the public body has made the “right” decision - the only question before the court is whether the public body has acted unlawfully in accordance with established legal principles. In particular, it is not the task of the courts to substitute its judgement for that of the decision maker, although it can intervene in appropriate circumstances. The main grounds for JR (which are neither exhaustive nor mutually exclusive) include: (1) illegality 39 (primarily in not applying the correct statutory test(s)); (2) irrationality (Wednesbury unreasonableness – see later); (3) procedural unfairness; and (4) incompatibility with the European Convention on Human Rights and/or EU law. The process of JR contrasts markedly with the function of a planning appeal. Developers who wish to challenge a Local Planning Authority’s refusal of planning permission (or the conditions attached to a Decision Notice) may apply for a full merits review within six months of the Decision Notice being issued. Third parties (for which there is no right of appeal) must apply to the Court for a Judicial Review of the lawfulness of a decision within six weeks (see later). The only review of the “merits” of a decision that can currently take place in JR is to consider whether the decision was “Wednesbury unreasonable”. In Associated Provincial Picture Houses Ltd. v Wednesbury Corporation,40 the English court set out the standard of unreasonableness of public-body decisions that would make them liable to be quashed by way of JR. This came to be known as ‘Wednesbury unreasonableness’ and was later articulated in Council of Civil Service Unions v Minister for the Civil Service41 by Lord Diplock as a decision: “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. It essentially means the court does not intervene and set aside an administrative decision unless it is so outrageous as to be perverse.42 Wednesbury unreasonableness is a very high threshold to reach and there is no special provision in the common law for environmental cases. The consequence of this limitation is that challenges that do proceed rely almost wholly on procedural grounds. This often renders JR ineffective as the decision-maker can simply remit the decision back to the relevant committee and make the same decision again with the procedural irregularities rectified. For example, in R (Andrew Cawdron) v North Norfolk Council and Balfour Beatty Civils Ltd,43 the Council agreed to quash approval for the North Norfolk Distributor Road within weeks of legal proceedings being issued. While the clients were initially delighted with the result, it soon  became apparent that the Council intended to immediately remit the decision back to the Planning Committee with the acknowledged procedural defect rectified on the papers. Permission was duly granted again within a matter of weeks, essentially rendering the procedure (in the eyes of the client) little more than a costly exercise in delay.
The judiciary has been asked to consider whether Wednesbury is the appropriate standard of review in numerous environmental cases in recent years (including EIA and Habitats and Species Directives cases).44 However, the courts have consistently held that Wednesbury is the correct standard of review. The intensity of review is partly a function of the degree to which the courts consider it necessary to defer to the executive. Where the decision-maker has discretion to balance competing considerations, the courts tend to be even more deferential. Thus, in the majority of town and country planning cases, for example, the view of the court is that it is entirely for the decision maker to attribute to the relevant considerations such weight as it thinks fit. In fact the courts can, and do, conduct a forensic analysis of the relevant technical issues in some cases (for example in private environmental law cases). The point is that they choose not to do so in public law cases.
In addition to the cases cited above, the limitations of the Wednesbury test are borne out by practical experience. The Environmental Planning and Litigation Service (EPLS) was established as a partnership between Leigh Day and Landmark Chambers in September 2013 to provide specialist advice on prospective environmental JRs. It has since advised some 120 clients as to whether they have arguable grounds to challenge the decisions of public bodies by way of JR. Of those enquiries (most of which concern planning proposals), counsel advised that 15 cases had grounds for JR with reasonable prospects of success (i.e. they demonstrated identifiable legal errors extending beyond merits review type complaints). The vast majority of the remaining cases raised substantive review issues but were advised that they would not meet the threshold for Wednesbury review, despite instances where – for example – decisions have been made on the basis of very little information, or it is clear that only scant consideration has been given to consultation comments from the public.
Most individuals and community groups understandably have limited experience of the process of JR. Many allege the decision-maker has acted unreasonably and unlawfully, only to be advised that the decision cannot be challenged because the Courts will not intervene in matters of judgment or on the merits (i.e. there is no effective substantive review available to them in the absence of a perverse or absurd decision). Most go away disappointed and baffled that the law does not allow them to question a decision that seems indefensible as a matter of common sense, or ask for a review on the basis of what is reasonable or proportionate or better informed. Many point out the inequity that exists between third parties and
developers, the latter enjoying the right to appeal a decision and receive a full merits review.
The UNECE Aarhus Convention requires contracting Parties to ensure that members of the public 45 concerned have access to a legal review procedure to challenge the substantive and procedural legality of decision, acts or omissions subject to Article 6 of the Convention (essentially cases concerning EIA) and other environmental cases. Unfortunately, the Convention fails to define what “substantive legality” means and there are varying standards of review available in the courts and tribunals of the Parties to the Convention, some of which (as in the Swedish Land and Environment Courts) provide a full merits review. The Court of Justice of the European Union (CJEU) applies a proportionality test in environmental cases.46 The intensity with which it is employed varies depending on whether the national measure interferes with a freedom guaranteed by an EU treaty, relies on derogation from an EU treaty, or simply implements EU law. 47 The Aarhus Convention Compliance Committee has previously suggested that the application of the proportionality principle could potentially provide a more appropriate standard of review in cases within the scope of the Aarhus Convention provided that the principle does not exclude any issues of substantive legality from review.
In December 2017, the RSPB, Friends of the Earth, Friends of the Earth Scotland and Leigh Day submitted a Communication to the ACCC alleging that the UK is in breach of the relevant provisions of the Aarhus Convention for a failure to provide a review of procedural and substantive legality. The Communication 48 was declared admissible by the Compliance Committee in March 2018 and a hearing will hopefully take place in 2019. If the Committee finds the UK in non-compliance with the relevant provisions of the Convention, the Governments of the UK will be prompted to decide what intensity of review is Aarhus-compliant and how it might be guaranteed. The cost of taking legal action In addition to the problems around intensity of review, people should not have to face crippling legal costs to bring public interest cases to court. Following the submission of a complaint to the European Commission by a coalition of environmental NGOs in 2005 (resulting in infraction proceedings against the 49 UK), the Governments of the UK introduced bespoke costs rules for environmental (Aarhus) cases. The 50 new rules were a significant improvement on the previous regime of Protected Costs Orders (following a case called Corner House51) because they offered prospective claimants in environmental cases absolute advance certainty as to the extent of their adverse costs liability (i.e. the legal costs payable by them to the  defendant public body if they were unsuccessful). The cap on adverse costs liability for individual claimants was £5,000 and in all other cases it was £10,000. In 2017, the Ministry of Justice implemented a number of changes to the costs regime for Aarhus cases. These changes were progressed in the face of substantial public opposition and Parliamentary concern52 and irrespective of the fact that environmental cases only constitute around 1% of JRs taken (approx. 150 of some 15,000+ cases annually). The new Rules remove prior certainty for claimants with regard to adverse 53 costs liability in environmental cases. Claimants must now provide a schedule of their financial resources 54 when applying for JR. On the basis of this information, defendants can apply for the “default caps” of £5,000 and £10,000 to be varied (for which read increased). While the court must ultimately ensure that costs are not “prohibitively expensive” for the claimant as a result of EU law, the fact that the cap may be 55 increased will undoubtedly have a “chilling” effect on potential claimants – as illustrated by the case below. The Liverpool Green Party (LGP) is an unincorporated association, which means it has no separate legal personality and can only bring a claim through an individual who acts on behalf of its members. It was advised by counsel that it had a strong claim for JR against a recent decision of Liverpool City Council to grant planning permission for a 333 car car-park in an Air Quality Management Area without undertaking an air quality assessment. LGP sent a letter in accordance with the Judicial Review Pre-Action Protocol outlining their grounds of claim. The Council’s response did not properly engage with the substance of those grounds. In relation to costs, however, it stated: “Please note that any claim for a cost protection order will be carefully examined. In particular it is noted that the court now has discretion under CPR 45.44 to vary the limits on maximum costs liability for Aarhus Claims and the Council will therefore require confirmation of the financial resources of your client in the event that it seeks a protective costs order”. In light of this correspondence, LGP was unable to find an individual prepared to act as claimant in that claim for a JR of the Council’s decision. The requirement to submit their personal financial resources for scrutiny and the risk of a potentially large order for costs against them (as an individual) deterred anyone from bringing a claim on behalf of the unincorporated association. There are other aspects of the costs regime that are problematic for those seeking to bring environmental cases. The CPR limits the amount of legal costs that successful claimants can recover from the defendant public body to £35,000 inclusive of VAT (this is called the “reciprocal cap” or the “cross cap”) and it can make cases too expensive to win. Ironically, this was the case in the JR referred to above by the RSPB, Friends of the Earth and Client Earth challenging the changes to the 2017 Aarhus costs regime – the claimants were successful in securing a number of helpful changes to the CPR as a result of the JR but their lawyers were unable to recover their full costs because of the reciprocal cap.56 Interestingly, the approach to costs in the UK courts differs markedly from the approach in the CJEU, where unsuccessful applicants are not expected to pay the EU institution’s legal costs on the basis that the Community institutions are already funded by the public purse (in effect, double recovery). The only costs payable are the travel and subsistence costs of EU legal staff attending the hearing, which usually (in my experience) amounts to no more than a few hundred euros. Remedies in JR There are a number of remedies available in JR proceedings. The most common is a quashing order, which nullifies a decision made by a public body. It is usually made where an authority has acted outside the scope of its powers (ultra vires). If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Very rarely, if there is no purpose in sending the case back, it may take the decision itself. A prohibiting order is similar to a quashing order, in that it prevents a tribunal or authority from acting beyond the scope of its powers. A Mandatory order compels public bodies to fulfil their duties. A declaratory judgment clarifies the respective
rights and obligations of the parties to the proceedings, without actually making any order. Damages are available as a remedy in JR, but only where requested and in limited circumstances. For damages to be available there must be either: (i) a recognised private law cause of action such as negligence or breach of statutory duty or; (ii) a claim under EU law or the Human Rights Act 1998. Finally, there is injunctive relief, which prevent a public body from acting in an unlawful way. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the party benefitting from the injunction will be asked to give an undertaking (sometimes called a cross-undertaking in damages) that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant is legally aided but it can happen in environmental cases and the extent of the undertaking required has prevented claimants from being able to secure interim relief. For example, in the Lappel Bank case, the RSPB requested an interim injunction to protect Lappel Bank (part of the Medway Estuary and Marsh system, a large wetlands area serving as a breeding ground, migratory route and wintering area for substantial numbers of wildfowl and water species, including two species listed on Annex I of Wild Birds Directive) from development as a port for the duration of the legal proceedings. However, the RSPB was unable to compensate the Port of Sheerness for losses resulting from the imposition of interim relief. The RSPB subsequently won the case, which went all   the way to the House of Lords and involved a referral to the European Court of Justice (as was) but it was a somewhat pyric victory as by that stage the mudflats had been developed as a car park.57 The discretionary nature of the remedies outlined above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Contrast the CJEU, in which the remedies are genuinely dissuasive. Fines for non-compliance with CJEU judgments routinely extend to a lump sum payment and daily penalties. For example, a failure to comply with judgments concerning the implementation of the Urban Waste Water Directive in Belgium recently resulted in a lump sum fine of 15,000,000 and a daily penalty of 62,000.58 
The JR climate
Against the limitations outlined above, there have been a number of other unhelpful changes to the JR regime generally in recent years. These include: 

Oral renewal - as of 2013, there is no oral renewal for claims deemed “totally without merit” (this applied to some 18% of JR applications in 2017);59
Criminal Justice and Courts Act 201560 – changes introduced under the CJCA 2015 include the “Significant difference test” (s.84), in which the court can refuse an application for JR where it considers that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred and the introduction of costs orders against interveners in certain circumstances (s.87);
Time limits - there is now a reduced (and very challenging) time limit for challenging decisions under the Planning Acts of 6 weeks. In reality, it is extremely difficult for individuals and community groups to find lawyers, secure legal advice, fundraise and decide to embark on legal action within the deadline;
Court fees – the Administrative court fee has doubled in recent years to just under £1,000 and 61 fees in the Supreme Court routinely amount to approximately £5,000;62
Legal aid – while public funding is theoretically still available in environmental cases, there are strict merits and means requirements (NGOs do not qualify in any event). Where awarded, a Community Contribution in the order of several thousands of pounds is usually required. An Environmental Court or Tribunal To protect the environmental rights created under the new Environment Act, the Government should establish an Environmental Court with environmentally literate judges, technical advisers and bespoke rules on standing, costs, intensity of review and penalties/remedies. There has been an exponential growth in environmental courts or tribunals in recent decades. By 2016, more than 1,200 (not including those at local or municipal level) were dispersed in 44 countries world-wide. 63 According to the world’s pre-eminent experts, Professors (Rock) Pring and Catherine Pring, who for more than a decade have studied the development of those institutions, this development is ‘dramatically changing the playing field for environmental justice around the world’. As of 1 64 st March 2018, nearly 1,500 ECTs existed. This expansion has engendered significant attention for the way in which it has changed 65 judicial responses to environmental problems, according to Brian J Preston SC, Chief Judge of the Land and Environment Court in New South Wales, Australia, and one of the world’s leading experts on the development of ECTs. In 2014, the Hon. Justice Preston identified the 12 key characteristics that are required for an ECT to operate successfully in practice. Of crucial importance is the requirement that ECTs 66 are independent of Government and impartial, but other factors with immediate resonance for the UK include the fact that such courts have a comprehensive and centralised jurisdiction covering administrative, civil and criminal proceedings – thus ensuring that cases with one or more elements can be dealt with holistically.
Other key factors seem to be that the judiciary are environmentally literate and have access to scientific and technical experts acting as advisers. The Land and Environment Court in NSW has a continuing education programme for judges, including seminars and training programmes on current environmental issues and advances in knowledge. Environmental courts and tribunals also facilitate access to justice and 67 develop environmental jurisprudence. During its 38 years of operation, the Hon Justice Preston reports that: ‘Government policy and decision making has altered to take account of and implement the Court’s decisions. In the Court’s merits review jurisdiction, the Court’s decisions and reasons for decisions have influenced strategic policy and decision-making processes of local and State government. For example, environmental planning instruments and development control plans have been amended to incorporate principles and reasoning articulated by the Court in its judgments. In the Court’s judicial review jurisdiction, government has remade decisions and delegated legislation in accordance with the Court’s decisions. Government has also altered policies or made new policies to account for the Court’s decisions’. 68 No such court or tribunal exists in the UK and while the issue has been repeatedly raised, there are 69 concerns around the practicality and cost of restructuring the courts and tribunal system to create a specialised environmental forum. On this point, Judge Preston observed that the ability of the court to look at multiple aspects and deal with issues quickly and effectively meant that the court comprehensively pays for itself. I believe that serious consideration should be given to the creation of UK tribunals with the central objective of enforcing the environmental rights described above. Such a forum should have bespoke rules in order to comply with the requirements of the UNECE Aarhus Convention, including:
The six-week deadline in planning cases in England and Wales should be extended in order to ensure fairness to claimants in accordance with Article 9(4) of the Aarhus Convention;
The existing liberal standing requirements for Judicial Review should be extended to all statutory reviews;
Any new environmental court or tribunal should provide a review of procedural and substantive legality as required by Articles 9(2), (3) and (4) of the Aarhus Convention. Proportionality (the standard of review applied in the Court of Justice of the European Union (CJEU)) is one possibility but there may be others - many ECTs apply a full merits review;70
The court should be staffed by environmentally literate judges assisted by scientific and technical experts;
The costs regime for environmental cases should be revised to restore advance certainty in respect of adverse costs liability, court fees should be reduced and the reciprocal cap should be abolished. There is no basis for it in the Aarhus Convention as the concept of “fairness” in Article 9(4) relates to the claimant, not the defendant public body. Third party interveners should not be at risk of costs; 71
The costs regime for private law environmental cases (including nuisance cases) should be modified to ensure that costs are not prohibitively expensive for claimants, following the findings of the Aarhus Convention Compliance Committee in 2016;72
Consideration should be given to the requirement that certain environmental cases should have an automatic suspensory effect. Ideally, there should be no requirement on the claimant to provide the court  environmental courts or with a cross-undertaking in damages in order to secure interim relief in environmental cases but, at the very least, the quantum of any cross-undertaking should form part of the assessment as to what level of costs is prohibitively expensive for the claimant; 

The court should have the power to award dissuasive and innovative remedies including restoration orders, damages and measures requiring personal accountability; and 
There should be public funding for cases brought in the public interest by individuals and NGOs. People should not have to prove they are “poor enough” - and communities should not be expected to raise substantial sums of money - to qualify for it. Such a fund would guarantee compliance with Article 9(5) of the Aarhus Convention, which requires contracting Parties to consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice. 
A New Environmental Watchdog74
The European Commission currently plays a crucial enforcement role. At present, any individual, community group or NGO can submit a complaint to the European Commission concerning an alleged breach of EU environmental law. The Commission will investigate the complaint and has the discretion to pursue it without the complainant having any financial exposure or obligation to resource it. The Commission will attempt to resolve the issue with the Member State through a pre-litigation procedure involving the issuing of a letter of formal notice and a reasoned opinion, both of which give the member state a fixed time to comply. If these measures fail, the Commission can then refer cases to the CJEU, which will reach judgments and, where necessary, impose hefty fines to ensure compliance.
If the UK is to replicate and reinforce these functions, we will need an independent Watchdog with sharp teeth and a wide remit – and a radical overhaul of the judicial system (see above). Any new Watchdog should be empowered and resourced to consider complaints about potential infringements of environmental law on the part of all bodies performing public functions (not just Ministers of the Crown or public bodies) submitted by individuals, community groups and NGOs. It should have the discretion to refer cases to Court and initiate enforcement action of its own volition. It is unacceptable for the Government to assume that the public will assume the responsibility (and cost) of ensuring compliance with environmental law. Not only is this flawed in principle (as any new Watchdog must be able to refer cases to court to at least achieve parity with EU complaints process), the mechanism by which the public is expected to  perform this function - JR - is blunt in itself for the reasons outlined above. There is precedent for such powers – the Equality and Human Rights Commission (“EHRC”) can institute legal proceedings directly and intervene in legal proceedings brought by other parties.75 If the Watchdog is to have a truly strategic approach to the implementation and enforcement of environmental law, it will need a robust scientific and technical basis against which informed decisions can be made, action progressed and progress measured. The enforcement process must therefore be complemented by an informed and robust system of technical information gathering and reporting, thus enabling any new Watchdog to: (i) assess overall compliance with environmental law; (ii) determine whether public complaints are one-off instances of non-compliance or indicative of an underlying problem with regard to implementation; (iii) identify problems and progress own-initiative legal action that is strategic, targeted and resource efficient; and (iv) report publicly on compliance with environmental law and how legal action is helping to achieve stated objectives. The European Commission is currently supported in this strategic function by the network of Committees and scientific bodies. These functions must be replicated in order to ensure the new body can initiate informed, strategic enforcement action against public bodies of its own volition. EU laws routinely require Member States to report on implementing measures and evaluate the impact of those measures on achieving the objective(s) of the law. The Commission is then required to prepare a composite report based on the information provided by the Member States. Directives also commonly require the establishment of a committee consisting of representatives of the Member States and chaired by a representative of the Commission. The objective of these so-called “Comitology” Committees is to assist the Commission in information gathering, reporting and identifying measures to be taken in order to achieve compliance with the objectives of the Directive. By way of example, the relevant provisions in the Habitats and Species Directive can be found in Articles 17, 20 and 21 and in the Water Framework Directive, Articles 15, 18 and 21. There were 31 active comitology committees in the environment sector in 2016 including the Committee on the Conservation of Natural Habitats and of Wild Fauna and Flora (HABITAT) and the Committee on the Marine Strategy Framework Directive. The committees decide their operating procedures (based on 76 standard committee rules of procedure) and meet several times a year, following which the Commission publishes the voting results and the summary record of the meeting in the comitology register.77 The Commission is also assisted in its functions by “Expert Groups”, which provide expertise to the Commission in preparing and implementing policy as well as delegated acts. Expert groups provide a forum for discussion on a given subject and are based on a specific mandate involving high-level input from a wide range of sources and stakeholders that takes the form of opinions, recommendations and reports. This input is not binding on the Commission. While Comitology committees and expert groups exhibit numerous differences in their manner of operation (principally as either political or technical bodies), their functions are complementary. Together, they serve to support the Commission in the effective development, implementation and enforcement of environmental law. In order for the new Watchdog to operate effectively as an informed body, these functions must be replicated. The establishment of devolved and UK expert advisory functions would enable an effective UK-wide approach to the implementation and enforcement of key pieces of environmental legislation. The legal status and resourcing of the Watchdog are crucial to its effective functioning and ensuring it is independent in line with the objectives. Firstly, the status of the new body should be permanently assured. In 2012, over 100 non-departmental public bodies were abolished, despite widespread public opposition to the so-called “bonfire of the quangos”. These bodies included (amongst others of environmental importance) the Sustainable Development Commission (SDC), and the Royal Commission on Environmental Pollution (RCEP). It is therefore important to ensure that the existence and operation of the new body is not susceptible to the whim of Government.
The Press Recognition Panel (PRP) was created as a result of the Leveson Inquiry into press standards, which followed widespread concern about alleged unlawful activities carried out by some sections of the press, such as phone hacking. The PRP is a body established by Royal Charter, thus ensuring that it remains wholly independent of any other body or influence and that it is also very difficult to dissolve. Essentially, board members can only be removed by the unanimous agreement of the other board members. The Royal Charter itself, which gives the Board Members that security of tenure, can only be amended by a two thirds majority of each of the House of Commons, the House of Lords and the Scottish Parliament, and with the unanimous agreement of the Board itself. Any new Watchdog must be established in a similarly robust manner. It should also be in receipt of adequate ring-fenced funding. The PRP received guaranteed funding from the Treasury for the first three years of its operation (and, crucially, the Treasury had no control over how the PRP spent that money).78 The new Watchdog should be able to enforce all environmental law, including the UK’s obligations under the Climate Change Act 2008, compliance with Multilateral Environmental Agreements (in addition to civil 79 society’s ability to make a complaint to the relevant committee of the MEA) and the application of environmental policy and law within the planning system.
Finally, the European Commission routinely publishes guidance on the implementation of various provisions of EU law, much of which contain helpful practical steps and case studies to aid compliance (see, for example, guidance on the EIA Directive, Habitats and Birds Directives and the Water and Marine Strategy 80 81 Framework Directives). The production of such guidance is overseen by the Comitology committees, thus 82 helping to ensure that it ultimately reflects EU-wide issues and solutions. The publication of Guidance on the implementation of environmental law, and a compendium of jurisprudence on environmental cases, could be other useful functions the new Watchdog could perform.  
Environmental & Wildlife Crime83
Wildlife crime can be defined as: “Any action, which contravenes current legislation governing the protection of the UK’s wild animals and plants”. It is widely accepted that many wildlife crimes amount to 84 serious crime, with offenders often being involved in other types of crime, especially those where a 85 substantial financial benefit can be gained - organised crime groups have been identified as having particular involvement in the illegal trade in endangered species. Other wildlife crimes can involve 86 barbarous cruelty and have a significant effect on the conservation status of protected species. The UK has introduced international obligations to address wildlife crime. The general principal of 87 domestic legislation - i.e. that sentencing should be dissuasive and that crime should not pay - reinforces those obligations. However, that is sadly often not the case. Set in the context of the total number of cases heard by the courts, there are few prosecutions for wildlife crime. A magistrate may hear a wildlife crime case perhaps once a decade. Wildlife and Countryside Link members have spoken with magistrates that often feel unable to make informed decisions on sentencing when hearing wildlife crime cases. Invaluable guidance for Magistrates in the form of 88 Costing the Earth – Guidance for Sentencers89 – was published by the Magistrates’ Association in 2010 but many now believe that formal sentencing guideline is urgently needed. Furthermore, many argue that wildlife offences, including those resulting in conservation impact, should be capable of being heard by the upper courts. Such a recommendation was also noted in the Law Commission’s recent review of wildlife law, suggesting that all wildlife crime should be heard in the upper
courts. 
90
When individuals are convicted of crime against wildlife, it is very rare that they receive custodial sentences. A recent report by WWF found that 74% of wildlife trafficking cases resulted in non-custodial sentences. Whilst the lower courts now have authority to impose unlimited fines, fines for wildlife crimes 91 seldom approach the previously allowed maximum. WWF’s report found that fines for wildlife trafficking offences were low, with 88% less than £2,500 and 70% less than the wildlife product value.92 All too often, sanctions imposed by magistrates are simply inadequate, and cannot be regarded as dissuasive. Examples of such inadequate penalties include:  
In April 2010, one of the most serious cases of wildlife poisoning ever heard in the UK noted that numerous poisoned baits were placed in the open air, some near rights of way. A number of dead birds, thought to have been poisoned, were also found. A professional gamekeeper was fined just £1,000. The sentencing for this case does not reflect the seriousness of the crime, not only because of the intention to gruesomely kill random wildlife, but also because of the obvious threat to public and domestic animal health posed by the possession and use of an illegal poison;
In March 2015, a woman was found guilty of selling and exporting tiger parts, a species at real risk of extinction largely due to illegal killing and trafficking. However, she only received a 12 month community order to undertake 120 hours of unpaid work, and was ordered to pay costs;
In December 2016, a number of men were convicted of 22 charges of using dogs to kill wild deer, and were given suspended custodial sentences. Further charges were brought relating to dogs being severely injured during prolonged fights with a badger. These offences clearly involved appalling cruelty;
In April 2017, a house owner and a developer were fined just £83 and £127, respectively, after unlawfully destroying a bat roost. The owner had previously indicated a willingness to accept a fine rather than to delay work. The work was undertaken at a time when breeding bats may have been present and an alternative roost that had been provided was not fit for purpose. The owner, by undertaking the work without a licence, saved several thousands of pounds. Penalties for wildlife crime and animal welfare offences should be proportionate to the offence committed. This could include including unlimited fines, prison sentences and actions against individuals. There should also be an offence of vicarious liability in relation to raptor persecution. Despite the breadth of wildlife crime, there are a number of common challenges associated with addressing wildlife crime. These include the following: (i) the lack of a comprehensive system for recording wildlife crime, hampering the analysis of trends, the setting of appropriate priorities, and the effective allocation of resources; (ii) the willingness and ability of the police to effectively address wildlife crime; and (iii) uncertainty as to the admissibility of evidence. In order to address these problems, it is recommended that:
Wildlife crime should become notifiable and recordable crimes to be included in statistical returns made by the police to the Home Office;
The Home Office should produce an annual report on wildlife crime, identifying trends and recommending appropriate priorities and resource allocation;
Each police force should appoint a force champion for wildlife crime, with coordinating responsibilities for a team of trained wildlife crime officers;
Police officers and appropriate members of staff receive sufficient training to enable them to identify reports of wildlife crime and to respond in an effective manner;
The Crown Prosecution Service ensures that specialist wildlife crime prosecutors continue to be available in all parts of England and Wales;
Contentious issues around the admissibility of evidence be identified, discussed and remedied; 
In order to aid informed and adequate sentencing, a comprehensive wildlife crime sentencing guideline be produced by the Sentencing Council; and
A partnership approach to all types of wildlife crime aimed at raising public awareness and crime prevention be pursued.

A Third Party Right of Appeal in planning93
The “first party” in development control in planning is the applicant for planning permission and the “second party” is the local planning authority (LPA). So-called “Third parties” are anyone else with a view on a planning application, whether they have a direct interest (e.g. as owner of the land on which the application is submitted) or a personal interest (e.g. as a neighbour) or a wider interest (e.g. as a parish council, community group or NGO). Where an LPA refuses planning permission, grants planning permission subject to condition(s), or fails to determine the application within the relevant deadlines, the first party applicant has the right to appeal to the Planning Inspectorate within six months of the date on the decision notice. However, there is no third party right of appeal (TPRA) - so if a local resident or NGO has objected to a planning application and it is subsequently approved by the LPA, there is no right of appeal. If the project is one of more than local 94 significance, one may persuade the Secretary of State to “call in” the application for his/her own determination under section 77 of the Town & Country Planning Act 1990. However, while the power to 95 call-in planning applications under the TCPA 1990 is very general in scope, it is Government policy to call-in a very small number of planning applications every year. In October 2010, the former coalition 96 Government stated its policy that they will exercise the power to call in only very sparingly where matters of significant national interest and policy are concerned. The position was reaffirmed in May 2012 when 97 the Minister of State, Department for Communities and Local Government (Greg Clark) confirmed that call-in powers should be used sparingly. Essentially, the powers are only used when matters are of national significance.98
If the application is called in, the Secretary of State normally holds a Public Inquiry at which the merits of the proposed development will be considered with a full opportunity usually given to the public to make written and oral representations at the Inquiry. However, where an objector fails to have an application called in and planning permission is granted by the LPA, their only remedy is to challenge the decision to grant permission through JR. Save where the decision is Wednesbury unreasonable, the Court will be  unconcerned with the merits of the development and limit its consideration to the lawfulness of the decision making process (see the discussion on intensity of JR above). I believe the current arrangements for challenging planning approvals are inadequate in a democratic society and that there is a strong case for the introduction of a qualified third party right of appeal in planning. Whilst this would have an impact on the speed of planning decisions, these concerns would be outweighed by the benefits of raising public confidence in the planning system and introducing higher standards for deciding planning applications. Increased transparency at an early stage and a right of redress at a later stage would go a long way to addressing public concerns about the way planning decisions are taken at present.
Some other countries with advanced democratic planning systems have third party rights of appeal including Ireland, Denmark, Sweden and Australia. Personal research conducted on the experience in Ireland demonstrated that third party appeals were made against 2.6% of all planning applications and that 37% of these resulted in refusals of permission, 60% with revised conditions and just 3% in a planning permission with the same conditions as those given by the local authority. It is also interesting to note that nearly 36% of those that appealed sought only to change the type or design of the development rather than prevent it. Given that over 10% of appellants became aware of the proposed development after the local 99 planning authority had made a decision, the opportunity for appeal by third party is critical – in the absence of this the group would not have had any opportunity to participate in the decision-making process. Article 6(1) of the European Convention on Human Rights (ECHR) provides that, in the determination of their civil rights and obligations, everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law. It is clear that prospective developers enjoy the protection of 100 Article 6. The jurisprudence of the European Court of Human Rights would suggest that immediate neighbours to a proposed development have rights under Article 6 if the development will have direct adverse effects on their property. There are also arguments that third party rights arise under Article 1 of the First Protocol and Article 8 (a right to respect for private and family life, home and correspondence).101 The Aarhus Convention does not directly require a right of third party appeal. Two UK communications to
the Compliance Committee alleged non-compliance with the Convention in respect of Articles 6 and 7 of the Convention. These arose in the context of the proposed construction of a superstore in Kent and various planning applications in London. The Committee examined the communicants’ arguments about 102 whether the planning laws and procedures of England and Wales met the standards regarding public participation required in Articles 6 and 7, including whether the fact that oral hearings might not be held at meetings of planning committees breached the Convention. In rejecting these submissions, the Committee found nothing to substantiate the more general allegations about the planning system in England and Wales. However, it has been argued that the creation of a right for third parties to have the merits of   proposed development examined at a public inquiry, at which their comments could be expressed and taken into account, would further the public participation requirements of Article 6 of the Convention.104 It is recognised that it would be appropriate to introduce a number of safeguards into any new TPRA system. The right should be qualified, in that only those who have objected to the original planning application should be permitted to appeal (with any exceptions at the discretion of the Inspectorate). Secondly, there would need to be measures to prevent any abuse of the right of appeal by those seeking simply to delay development, to gain commercial advantage, to secure benefits from a developer in return for the withdrawal of an appeal, or to gain publicity. It may also be necessary to control the volume of appeals by limiting it, at least initially, to a number of categories as recognised in the 2002 Report including:
when the planning application is contrary to the provisions of an adopted development plan;
when the planning application is one in which the local authority has an interest;
major applications (as defined by the Planning Inspectorate);
when the application is accompanied by an Environmental Impact Statement; and
when the planning officer has recommended refusal of planning permission to the members.
There should, however, be no restriction on the grounds of appeal and there should be parity of choice (written representations or oral hearing) between developers and third parties. Although first parties have six months to lodge an appeal, the need for developers to have certainty with regard to development decisions is recognised and I would therefore suggest that the time limit for lodging an appeal should be something akin to 28 days from the granting of the full or outline planning permission. There should be no costs awarded in written representation cases and costs should be awarded for unreasonable or vexatious behaviour in oral hearing cases, including against third parties. The Secretary of State should set administrative targets for efficient handling of third party appeals.

References

1 Statistics taken from the State of Nature 2016, RSPB Report available here 

2 Ibid

3 WWF (2016) Living Planet Report 2016 - Risk and resilience in a new era- see here

4 The nine planetary boundaries include stratospheric ozone depletion, loss of biosphere integrity (biodiversity loss and extinctions), Chemical pollution and the release of novel entities, climate change, ocean acidification, freshwater consumption and the global hydrological cycle, land system change, nitrogen and phosphorus flows to the biosphere and oceans and atmospheric aerosol loading - see here


5 Steffen et al. (2015). Planetary Boundaries: Guiding human development on a changing planet. Science Vol. 347 no. 6223


6 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters - available here

 


7 Declaration made upon signature and confirmed upon ratification: “The United Kingdom understands the references in article 1 and the seventh preambular paragraph of this Convention to the 'right' of every person 'to live in an environment adequate to his or her health and well-being' to express an aspiration which motivated the negotiation of this Convention and which is shared fully by the United Kingdom. The legal rights which each Party undertakes to guarantee under article 1 are limited to the rights of access to information, public participation in decision-making and access to justice in environmental matters in accordance with the provisions of this Convention."

8 Available here

9 Section 16 of the EU (Withdrawal) Act 2018 requires the Secretary of State to publish (within six months) a draft Bill consisting of a set of environmental principles and a statement of policy in relation to the application and interpretation of the principles in connection with the making and
development of policies by Ministers of the Crown. The Act also provides for a duty on Ministers to have regard to the statement in the exercise of their statutory functions. The environmental principles must include the following: (a) the precautionary principle so far as relating to the environment; (b) the principle of preventative action to avert environmental damage; (c) the principle that environmental damage should as a priority be rectified at source; (d) the polluter pays principle; (e) the principle of sustainable development; (f) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities; (g) public access to environmental information; (h) public participation in environmental decision-making; and (i) access to justice in relation to environmental matters.

10 Text in this section draws on Wildlife & Countryside Link’s response to the Defra consultation on Environmental Principles and Governance after the UK leaves the EU dated 2nd August 2018 (available here) and a presentation given by Kate Cook (Matrix Chambers) to a seminar on Governance post Brexit hosted by Leigh Day and Matrix Chambers on 24th May 2018 (presentation available on request)


11 See Articles 1(a) and 4(a)(i) and 4(b)(i) of Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy 

12 See here

13 See UNCLOS, Article 63(1) available here
14 See CBD, Article 5 available here
15 See the Preamble and Articles 7,8 and 14 available here
16 UNECE Convention on Environmental Impact Assessment in a Transboundary Context available here
17 See Article 14, CBD
18 See Preamble 9 to Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy available here
19 See A Green Future: Our 25 Year Plan to Improve the Environment (2018)available here
20 See the Preambles and Article 2(3) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC available here
21 CBD, Preambles and Article 8
22 See MSFD Preambles and Article 1(3)
23 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora - available here
24 See Article 2(2), Habitats Directive
25 See Article 1(c) UN Convention on the Conservation of Migratory Species of Wild Animals available here
26 See, WFD Preambles and Articles 4(3)(a) and 4(7)

27 The Aichi Biodiversity Targets include: Strategic Goal A: Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society; Strategic Goal B: Reduce the direct pressures on biodiversity and promote sustainable use; Strategic Goal C: To improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity; Strategic Goal D: Enhance the benefits to all from biodiversity and ecosystem services; and Strategic Goal E: Enhance implementation through participatory planning, knowledge management and capacity building –
available
here 

28 The central aim of the Paris Agreement is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5
degrees Celsius. Additionally, the agreement aims to strengthen the ability of countries to deal with the impacts of climate change. To reach these ambitious goals, appropriate financial flows, a new technology framework and an enhanced capacity building framework will be put in place, thus
supporting action by developing countries and the most vulnerable countries, in line with their own national objectives. The Agreement also provides for enhanced transparency of action and support through a more robust transparency framework – more information is available
here

29 The World Organisation for Animal Health (OIE) is the intergovernmental organisation responsible for improving animal health worldwide. It is recognised as a reference organisation by the World Trade Organization (WTO) and in 2018 has a total of 182 Member Countries, including the UK. See here for information about its objectives

30 Information about the UN’s 17 SDGs (incorporating 169 targets) is available here

31 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC available here 

32 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC available here

33 In Case C-240/09, Lesoochranarske zoskupenie (LZ I, also known as “Slovak Brown Bears case”), the CJEU held that it is for national courts to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) Aarhus convention and the objective of effective judicial protection of the rights conferred by EU law (para 51).

34 See Communication ACCC/C/2017/150 United Kingdom available here 

35 For further information about the necessary animal welfare components of any new Environment Act, please see Brexit – Getting the best deal for animals, a report published by Wildlife & Countryside Link and the UK Centre for Animal Law (A-Law) in January 2018 available here
36 See here
37 On 16th November 2006, the Centre for Public Law held the sixth in the series of lectures in honour of Sir David Williams. The lecture, entitled "The Rule of Law" was given by The Rt. Hon Lord Bingham of Cornhill KG, House of Lords. In this lecture, Lord Bingham identified eight principles to define the Rule of Law as follows: (1) The law must be accessible, clear & predictable; (2) Questions of legal rights should be resolved by the law and not the exercise of discretion; (3) The law should apply equally to all, except where objective differences justify differentiation; (4) Ministers must act within their powers and not exceed their limits; (5) The law must afford adequate protection of fundamental human rights; (6) The law should provide access  to justice, especially where people cannot resolve  inter-personal disputes themselves; (7) Courts and tribunal processes should be fair; and (8) The state should comply with international law
38 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23
39 Wheeler v. Leicester City Council [1985] AC 1054, 1078 B-C
40 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation[1948] 1 KB 223
41 Council of Civil Service Unions v Minister for the Civil ServiceA.C. 374, 410 per Lord Diplock
42 Arden, Lady Justice. (2013). Proportionality: the way ahead? Public Law P.L. (2013) July Pages 498-518
43 Unreported