Communication to the UNECE Aarhus Convention Compliance Committee brought by the RSPB, Friends of the Earth (England, Wales and Northern Ireland), Friends of the Earth Scotland, and Leigh Day.
The Communication concerned the compliance by the United Kingdom with Articles 3(1), 9(2), (3) and (4) of the Convention, specifically in relation to substantive review in judicial review and statutory court challenges in the environmental context. The Communication alleged that the practice of the UK courts in relying upon the standard of Wednesbury unreasonableness fails to comply with the Convention. The UK argued that Wednesbury unreasonableness is a criterion of legality rather than a matter of access to justice protected by those Articles of the Convention, that there are numerous other heads of review on non-procedural grounds, and that in any event there are numerous examples of substantive judicial review claims succeeding.
A hearing was held at the Palais des Nations in Geneva on November 2019 and the Compliance Committee’s findings are awaited.
The UK Government was represented at the written and oral stages of the proceedings by Charles Banner QC and Alistair Mills, instructed by the Government Legal Department.