Standing and discretion – who acts for ospreys?

David Hart QC

(This piece was initially published on 19 October 2012 on the UK Human Rights Blog)

Walton v The Scottish Ministers, Supreme Court, 17 October 2012 read judgment

The outcome of this challenge to a road scheme near Aberdeen turned on abstruse points about environmental assessment – but the speeches from the Justices go right to the heart of two big questions in public law.

1. When can someone challenge an unlawful act – when do they have “standing” to do so?

2. If an unlawfulness is established, when can the courts exercise their discretion not to quash the unlawful act, particularly where the unlawfulness arises under EU law?

In the course of the standing issue Lord Hope talks about ospreys – hence my title, but a bit more context first. And we shall also see the views of the Court that standing and discretion are linked questions. Continue reading

Standing and the Aarhus Convention

On 16 January 2012 Matrix played host to a Bar European Group seminar entitled “NGOs and EU litigation: the inadmissible in pursuit of the unspeakable”. Kate Cook, a contributor to EUtopia law, gave one of the presentations.  She dealt with the issue of which acts and omissions can be reviewed under new procedures brought in to implement the Aarhus Convention provisions on access to justice in respect of decisions taken by EU institutions. In her view, the restrictive approach currently taken by the Commission to the issue of which acts may be subject to internal review only exacerbates the difficulties caused by the Court’s restrictive approach to questions of standing more generally.  Kate’s PowerPoint slides can be found here.