Access to justice in environmental law: An investigation of the locus standi of environmental pressure groups in English law and the creation of an environmental court
Pressure Groups, the subject of this work, their selfperception and their access to our Courts is a subject that has, for some time, been of personal interest to me. I had had no personal contact with any pressure group until approximately 10 years ago when, standing at the window of a naval Wardroom in the South of England, I found myself, together with many other naval officers, looking down upon a gathering of about 500 protestors demonstrating against our possession of astrategic nuclear deterrent, most of whom were members either of the Campaign for Nuclear Disarmament or Greenpeace. Their presence stimulated much discussion, far more I suspect than those standing outside would have imagined might have occurred in the conservative atmosphere of a naval establishment. Their mere presence awakened in a number of my colleagues, misgivings concerning the morality of the nuclear deterrent and the incalculable effects it's use would inevitably have. The discussion went on long after the Police had moved on the protestors. To that extent their mere presence had had some effect. Much of the environmental policy of the European Union and thus of the United Kingdom has been instigated by individuals. The environmental movement is an example of change being instigated from the bottom rather than the top (see Hague Manual of Environmental Policy, Introduction Chapter). I believe that if we are to rely upon the State and regulatory bodies created by the state to protect and police our environment and to invest only those authorities with the power to do so, we place ourselves, to a dangerous extent, at the mercy of political forces within the framework of a present constitution where the attainment and preservation of power is paramount and where, perhaps, only an environmental catastrophy could provide the necessary impetus for constitutional change necessary to effect change within our present institutions. In Chapter 1 this work will examine the nature and constitutional organisation of two typical pressure groups active in the field of environmental action, Friends of the Earth and Greenpeace, their self-perception will be examined as will the methods by which they have sought to achieve their aims. In the second chapter this work will examine the position of pressure groups in contemporary English law, in particular, with regard to the rules of locus standi applicable at common law, in statute, in the criminal law and in the regulation of administrative action by judicial review. In so doing, this work will seek to show that anomalies and inconsistencies exist, not simply with regard to the rules of standing as applied between the areas of law just referred to but indeed within those areas themselves. This work will seek to argue that such anomalies and inconsistencies do not accord with the concept of an environment shared by us all, for which we are all responsible and on behalf of which we should all have the right to act in its protection. The advantages and disadvantages of an 'open' and 'closed' system of access to the courts will be examined, in particular, the requirements and effect of European Community measures upon our national rules of standing will be investigated and it will be suggested that in that regard our national rules are potentially at variance with the requirements of community law and, therefore, subject to challenge. Remaining with the effect of European Community measures upon our national rules of standing this work goes on to examine the provision of the draft Directive entitled "Access to Justice in Environmental Matters" and it's potential effect upon our present rules. In the final chapter of this work new solutions to the problems exposed in Chapter 2 will be postulated. In particular, it will be submitted that a mere broadening of the present jurisdiction of our High Court will not address the problems inherent within our present system and that what is required is the creation of an entirely new Tribunal, an 'Environmental Court'. Such a Court would have jurisdiction to examine not only matters of procedural law but of substantive law and, in particular, to have the power to look to the merits of the decisions taken by government or statutory bodies the creation of government. The jurisdictional system created in New South Wales by virtue of the provisions of the Environmental Planning & Assessment (1) See Fuhr, Gebers, Orrnond & Roller infra. Act of 1979 and its creation of the Land & Environment Court will be critically analysed. Finally, the constitution and jurisdiction of a United Kingdom Environmental Court will be suggested as the only proper and practicable way of addressing the difficulties of access to the law in environmental matters and the ability of the law to effectively give voice to all who seek to protect our shared environment.
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