Preface
I am now an officially retired lawyer, having decided to give up my practising certificate on 31st October last having spent 44 years in continuous possession of such a certificate. But what you have learned over that period is not erased from your brain. Including how to read and interpret a judicial decisions. In this case that has nonetheless required a great deal of reading. Lord Ericht's decision in Greenpeace runs to 57 pages and the majority's alone in Finch to 106, so reading up on this has taken me some time. You will see the importance of these cases below but I point that out only to explain the delay in my giving my thoughts.
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On Wednesday past, in the Court of Session, in the case of Greenpeace and others v The Advocate General and others, Lord Ericht decided to ban any oil extraction from the Jackdaw and Rosebank offshore oilfields. These fields had been approved for development by the UK Government on 1st June 2022 and 27th September 2023 respectively and had been approved in accordance with what the law was then understood to be. But it turned out the understanding of the law bearing on that approval was incorrect. Although it didn't become incorrect until 20th June 2024 when the Supreme Court handed down its judgement in the case of Finch v Surrey County Council.
And it is the decision in Finch which is the real problem here.
In Summary, in December 2018 a small oil field developer in Surrey applied to expand their field from 2 wellheads to 6. For this they needed the permission of the County Council, who, in considering the application for permission, were obliged to have regard to the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. Permission was granted on 27th September 2019. On 20th June 2024, nearly five years later, the Supreme Court decided by 3 votes to 2 that this permission had been wrongly granted. This was the first time the decision of September 2019 had been judicially reviewed other than to approve the process of the County Council. The reason for the Council's decision being wrong was that the environmental impact assessment for the development had considered only the greenhouse gas emissions for the project itself but apparently needed not just to evaluate the greenhouse gas consequence of the development itself but the consequence of the product (oil) that it would produce. The original detailed reasoning of the County Council that this latter issue was unnecessary, based on their interpretation of the relevant legislation, and being well aware of it, was, nearly five years later, in the majority opinion of the Supreme Court, wrong. This was a wholly unjustifiable delay in that being decided. That, ultimately, is my main point here.
So, before we go on to consider the wider consequence of that delay, let's see how it came about.
Ms Finch's application for Judicial Review was brought on 9th November 2019. It was first considered by the High Court on a date unavailable but was then refused based on consideration of a written application to be allowed to proceed alone. That then triggered the first hearing in open court again on a date not clear but when the application was again refused. Eventually however, on 15th July 2020, the application was allowed to proceed by the Court of Appeal. By now, nearly ten months after the decision complained of. Although, to be fair, the disruption to court business during the pandemic may have been a a factor here.
Anyway. for now at least, for just about the only time in this case, matters proceed with some expedition. Following sundry procedure, a full hearing is fixed for October 2020, leading to a comprehensively explained decision issued on 21st December 2020 refusing the application for review.. Which decision is then appealed.
But, then. when is thar appeal considered? As early as in the 4th (of 148) paragraphs of the decision of the judge at first instance, he recognises the significance of his judgement in relation to other planning etc. decisions waiting upon it. But at no point does any higher level of our judiciary seem to acknowledge that importance or the commercial imperatives for the matter to be resolved.
For the appeal does not proceed to a hearing until November 2021, nearly a year later. Leading to a judgement issued on 17th February 2022, By now nearly 30 months after the original decision complained of . By a majority, I accept, but nonetheless, the decision of the County Council is again upheld by the Court of Appeal.
But that is not the end of it. For the petitioner is allowed to set off to the Supreme Court. Which, within her rights, she does, But the Supreme Court does not consider the matter at all until JUNE 2023! Some 16 months later. Over a matter which the judge at first instance had recognised instantly as being of much wider importance than the one immediately between the parties directly to it,
Still, at least we are coming to the end of this? Well, no actually.. For having heard submissions on 21st and 22nd June 2023, the court finally issued its judgement on 20th June 2024! Just a day short of a year later. And by a majority of 3 to 2, after nearly 5 years, finds for the petitioner! The permission granted by Surrey County Council was unlawful and thus so were any other regulatory decisions proceeding from the same "mistake". I'll come back to this in my conclusions,
For let's move on to the decision then to be made by Lord Erlich. Petitions in respect of the separate applications for judicial review of the decisions to grant in both Jackdaw and Rosebank, premised on the same argument advanced in Finch, were brought timeously and sisted (frozen) pending a decision in Finch. For, although the Statutory Instrument prayed in aid in Finch is different, its wording and indeed source is the same, being terms of an EU directive obliged to be incorporated in domestic law while we were still in the EU.
But, Finch having been decided, the reason for that sist had disappeared, it being accepted that the Government and its nominally decision making quango, had not required an environmental impact assessment beyond that pertaining to the immediate impact of the Jackdaw and Rosebank developments and thus excluding consideration of the possible use of its oil and gas production from these same assessments. So, in light of Finch, these decisions were invalid in law,
The decision of Lord Erlich, who was obliged to follow the decision of the Supreme Court, would have been easy on that, Except he wasn't even obliged to do that, For the lawyers for all parties: the petitioners, the Government and the potential developers were all agreed on that. Even given its very belated utterances, the Supreme Court had to prevail, The decision to grant approval was wrong, even if it proceeded on the law as understood, and indeed at that point judicially affirmed, was wrong. The only question for his Lordship was remedy.
And on this he was left with two options. The first was to reduce the certificates issued which allowed the oil fields to proceed as they had not complied with the requirements in relation to an environmental impact assessment, that subsequently decided by the Supreme Court should have been necessary. Alternatively Lord Erlich could have decided simply to issue an order of declarator. Essentially, that it was now clear the permission should not have been granted, but it had been, and, relying on it, the developers had proceeded to spend a very great amount of money and employed large number of people. On that basis the development should be allowed to proceed with a warning to the Government not to make the same "mistake" again.
His Lordship essentially resolved on the former course of action. So, for the moment at least, no oil or gas can be extracted from either field.
His Lordship decided at Para 98 of his judgement that he had to balance three main interests.
[98] In the current case there are, broadly speaking, three main interests that require to be balanced. The first is public interest in the Rule of Law and in public authorities acting lawfully. The second is the private interest of members of the public in respect of climate change issues arising out of the Jackdaw and Rosebank projects. The third is the private interest of Shell, Equinor and Ithaca as developers of the Jackdaw and Rosebank projects.
With respect, I am not sure it should have been just these three. For surely the interests of those employed or to be employed in the developments and indeed the wider economic impact in North East Scotland of their cancellation should also have been factors?
But that's not my main point. My main point is his Lordship's first criteria.
"The [first is] public interest in the Rule of Law and in public authorities acting lawfully."
This is absolutely correct but that must surely involve a concomitant obligation on those charged with interpreting the law to do so expeditiously? Not taking nearly five years to do so.
Now Lord Erlich is not blind to that delay. The error had caused the developers to expend hundreds of millions of pounds based on certificates believed to have been valid when issued by those responsible for their issue. But his Lordship suggests incurring that expenditure under ongoing legal uncertainty was just a risk the developers had to factor in before proceeding.
Now, I ask you, is that a regulatory regime that is likely to attract inward investors with a worldwide choice as to where to spend their money?
A sclerotic legal system is a very real enemy of growth. That it is accepted in advance that a third runway at Heathrow will take at least five years to secure planning permission and exhaust all possible legal appeals is an absurdity. If the Government is serious about that same growth then this is where they need to start.
