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Interesting discussion of the requirement for review on substantive legality under Article 9(4) of the Aarhus Convention in the recent Prince of Wales freedom of information case.

In R (Evans) v Her Majesty's Attorney General [2013] EWHC 1960 (Admin) the Divisional Court considered the requirement for review on substantive legality under Article 9(4) of the Aarhus Convention.

The Court noted that in the Port of Tyne communication the Aarhus Convention Compliance Committee (ACCC/C/2008/33) queried whether judicial review met the standards required for review by the Aarhus Convention with regard to “substantive legality”.

The Court though said:
“130 … Article 9.1 in general terms, so far as concerns requests under Article 4 (access to environmental information), requires “access to a review procedure” by an independent and impartial body established by law. That generality of approach is reflected in Article 6.2 of the Directive itself.
131 It is true that Article 9.2 of the Aarhus Convention requires access to such a body “to challenge the substantive and procedural legality of any decision”: albeit that is dealing specifically with requests under Article 6 (public participation in decisions on specific activities) and such language is not in fact deployed in Article 9.1 of the Aarhus Convention . It is also true that the Implementation Guide to the Aarhus Convention (2013 ed. at p.199) asserts that the entitlement to challenge the “substantive and procedural legality” is “implicit” in Article 9.1 also; and the 2011 Recommendations of the Implementation Committee had indicated concern as to whether a judicial review procedure, of the model adopted under the law of England and Wales, meet the standards of review said to be required by the Aarhus Convention with regard to substantive legality. But the point was tentatively put by the Implementation Committee: and there was, at all events, no finding that the United Kingdom was in non-compliance with Article 9 of the Aarhus Convention (see paragraph 127). Moreover, while the Implementation Guide itself may properly be taken into account, it is not binding: any more than are the views of the Implementation Committee.
132 Mr Swift cited the case of R (Evans) v Secretary of State for Local Government [2013] EWCA Civ 114 – a case on the 1999 Environmental Impact Assessment Regulations . Among other things, in that case, Article 9 of the Aarhus Convention fell to be considered, including the suggested need for assessment by a court of the substantive and procedural legality of an environmental decision (paragraph 33). It was observed by Beatson LJ at paragraph 37 of his judgment (with which Sir Stanley Burnton and Patten LJ agreed) that the expressed concerns of the Aarhus Convention Compliance Committee did not bind the English courts and in any event did not “identify the variations in the intensity of Wednesbury review that reflect the nature of the interests affected”.

133 As may be gathered from what I have previously said, I attach considerable importance to the principle reaffirmed by Beatson LJ in this last sentence. Judicial review is a procedure consistent with the requirements of Article 9.4 of the Aarhus Convention . It is a flexible procedure, enabling an appropriate intensity of review where such intensity of review is called for: see also the analogous reasoning of the Court of Appeal in T-Mobile (UK) Ltd v Office of Communications [2009] 1 WLR 1565; [2008] EWCA Civ 1373 (a competition case dealing with Directive 2002/21/EC ). In the present kind of case, close scrutiny by the court is called for: and such close scrutiny of the reasons given for the accountable person's opinion must require – and has here required – a close scrutiny by the court of the initial decision to withhold. Indeed, if there were substantive or procedural illegality or irregularity in the original decision such a review by the court, under section 53 , should reveal it. In my view, that amply complies with the requirements of Article 6.2 of the Directive.”