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On 27 June 2023, the UK Government confirmed that the Bill of Rights Bill will not be proceeding. The government first laid the Bill before Parliament on 22 June 2022. The Bill, aimed at repealing the Human Rights Act 1998, was introduced as clarifying and re-balancing the relationship between UK courts, the European Court of Human Rights (ECtHR) and Parliament. The Bill received widespread criticism including from the Law Society, which called it a “lurch backwards for British justice” and warned about its potential to create “acceptable” human rights abuses. The government's abandonment of the Bill likely comes as a relief to many, considering the significant backlash the Bill received and its likely consequences of uncertainty, divergence from the ECtHR and a reduction in the protection of rights in the UK. Read more about this here.
There have been a number of significant judicial reviews raising climate change issues in 2023. These challenges have largely been unsuccessful as the courts have emphasised the significant discretion afforded to policymakers when tackling these issues and managing the UK Government's net zero obligations. A recent example is the unsuccessful challenge to the government's further licensing of offshore oil and gas exploration and production, covered in our blog post here. Notably, earlier in the year, the Court of Appeal concluded that when considering the lawfulness of a public law decision in the context of an unincorporated treaty such as the Paris Agreement, the standard of review in judicial review proceedings may be based on tenability and not correctness (see our blog post here).
In relation to challenges seeking to rely on the Human Rights Act, the High Court has refused to accept that there is a right to environmental protection against pollution owed to society or the population of the country as whole, as detailed here. There have also been some cases specifically in the aviation context considering the climate change implications of airport expansion/development – see our blog posts here and here.
On the issue of amenability, in the Doncaster airport case, the Administrative Court indicated that it is “arguable with a realistic prospect of success” that a privately owned airport operator discharges a public function amenable to judicial review when making a decision to close an airport. The judgment serves as a reminder to private organisations functioning in an area of public interest, both in aviation and other sectors, that they are not necessarily exempt from public law’s basic standards of lawfulness, reasonableness, and fairness.
Regarding timing, in the Octopus Energy case the court found that proceedings brought within a matter of weeks still amounted to undue delay, emphasising the importance of strict time limits in judicial review proceedings. The court stressed that a claimant does not need to have full disclosure to launch judicial review proceedings, as it is usually the granting of permission that triggers the duty of candour. Proceedings can be started as long as the substance of the grounds of review is known, as the grounds can be later amended following disclosure to flesh out the details.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2024