Judgment Approved by the court for handing down.
Davis & Ors v SSHD
the Supreme Court would not have granted any relief beyond a declaration. The
statutory scheme was complex and it was not for the court to devise an alternative.
117.
The Claimants propose an order for disapplication, suspended until 1 January 2016, to
give time for compliance. As counsel for Mr Davis and Mr Watson put it in their
submissions (with which counsel for Mr Brice and Mr Lewis agree):
“The Claimants accept that Parliament will need to be afforded
a reasonable opportunity to legislate for proper safeguards…..
Despite its unlawfulness, the Claimants do not invite the Court
to order that the entire DRIPA regime falls with immediate
effect. The Claimants are anxious to ensure that serious
criminal investigations are not impeded, and that the legislation
necessary to resolve the defects in the current situation is not
enacted with the same unfortunate haste that DRIPA was.”
118.
Ms Rose refers to the decision of the Supreme Court given on 29 April 2015 in R
(ClientEarth) v Secretary of State for Environment, Food and Rural Affairs [2015]
UKSC 28. The Secretary of State admitted that the UK was in breach of the air
quality standards required by Article 13 of the Air Quality Directive (2008/50/EC).
The High Court and Court of Appeal considered that this was a matter for the
Commission, not the national courts. All relief was refused. The Supreme Court
granted a declaration recording the UK’s breach of EU law and made a reference to
the CJEU as to (among other things) whether it should order further relief. The CJEU
held that national courts must take “any necessary measure, such as an order in the
appropriate terms” to ensure compliance with EU law (§58).
119.
When the case returned to the Supreme Court, they granted a mandatory order
requiring the production of air quality plans designed to end the breach, subject to a
time limit for production and with liberty to apply. The Supreme Court had “no
hesitation in rejecting” the submission that mandatory relief was unnecessary (§29).
The Court concluded that “we would… be failing in our duty if we simply accepted
[the Secretary of State’s] assurances without any legal underpinning… the new
Government, whatever its political complexion, should be left in no doubt as to the
need for immediate action to address this issue” (§30).
120.
The ClientEarth case is a significant and recent case on remedies in the UK courts for
breaches of EU law. It does not lay down a rule that disapplication or mandatory
relief, even with a reasonable time for compliance, must always be the appropriate
remedy, but it gives a steer which in our view cannot be ignored.
121.
We consider that an order for disapplication is appropriate, but that a date of 1
January 2016 for it to come into effect is too soon. The Government has already
announced its intention to legislate in the current session of Parliament to replace
DRIPA (as it must, given the sunset clause). Subject to any view different from ours
taken by a higher court, it will no doubt seek to ensure that the new statute, unlike
section 1 of DRIPA, is compliant with EU law. The courts do not presume to tell
Parliament for how long and in what detail Bills should be scrutinised, but it is right
to say (to put it no higher) that legislation enacted in haste is more prone to error, and
it would be highly desirable to allow the opportunity of thorough scrutiny in both
Houses. Moreover, if the route chosen for compliance with part (b) of the declaration