Third Round Problem (moot of 2004-2005)
In The House of Lords
R. (Granby Group Against the By-pass (GRAB)) v. Secretary of State for Transport
Granby is a (fictional) market town in the South East of England. For the past twenty years its inhabitants have been arguing about whether or not it would be appropriate to build a dual carriageway by-pass around the town to replace the narrow road system that regularly clogs up the town with traffic. A clear majority favours the by-pass but a few determined individuals oppose it. Successive governments have been determined to build a by-pass around Granby. At one point in the mid 1990s a Granby by-pass road had been included in the Government’s road-building plans. Construction of the Granby by-pass was halted, however, by a well-organised group of protestors. Road construction elsewhere in England has been similarly frustrated.
Road building is now governed by the new (fictional) Transport Act 2003 which requires (1) an audit of anticipated environmental damage and (2) consultation with citizens likely to be affected by road construction before any new roads are built - and all of this “notwithstanding any legislation to the contrary”. As a result of the new legislation, almost no new roads have been built in recent months.
The South of England has been hit by months of torrential rain in the summer and winter of 2003-4. Roads have been washed out in many towns, including Granby. Accordingly, the Secretary of State for Transport has announced a nation-wide programme of immediate road re-building to repair the damage caused by the rains. When challenged in Parliament regarding the government’s power to do so without respecting the provisions of the Transport Act 2003, the Secretary of State for Transport stated that the government was using prerogative powers to deal with national emergencies, and that the English public would support it in doing so. A little-noticed section of the Transport Act 2003 had repealed all existing legislation dealing with civil emergencies. The Secretary of State claimed that prerogative powers to deal with civil emergencies were thereby “revived”. Granby is first on the long list for road re-building, and a new dual carriageway by-pass is included in the plans.
A newly formed group of anti-road protestors, the Granby Group against the By-pass (GRAB), oppose the government’s actions. They have commenced judicial review proceedings. GRAB members (none of whom is actually resident in or near Granby) have never been involved in illegal protest. Instead they have devoted time and money to accumulating research, from Granby and elsewhere, on the environmental, economic and other effects of building of by-pass roads around English market towns.
The Divisional Court rejected the claim for judicial review. Lord Justice Deluge was of the view that the Crown’s prerogative to deal with civil emergencies could be revived. The various recently repealed statutes dealing with civil emergencies had not destroyed this prerogative; these statutes would simply have rendered the prerogative inoperative for so long as they were in force. Their repeal meant that the prerogative was operative once again. However, Deluge L.J. took the view the courts had no place reviewing the exercise of such a prerogative given the importance and political nature of the decisions involved. Emergencies were analogous to (if not embraced by) national security in his view. Furthermore, Deluge L.J. decided that on closer examination of the applicant, GRAB, it was clear to him that they were ideologically committed meddlers from outside Granby masquerading as concerned citizens, and accordingly he took the view that they should not be granted locus standi. Eclair J. was more impressed with GRAB’s genuine concern and expertise, but she took the view that there was no shortage of potential applicants who could come forward to vindicate the rule of law in cases such as this. Accordingly, she would also have refused to grant locus standi. She disagreed with Lord Justice Deluge on the issue of the prerogative. In her view, once a prerogative has been replaced by statute that prerogative can never be revived. However, if a prerogative can be revived, she was in principle prepared to review its exercise. Both of these conclusions regarding the prerogative seemed to her consistent with a modern approach to the constitution. Given the judges’ views on the standing issue, the claim for judicial review was unsuccessful.
GRAB now appeals to the House of Lords on that grounds that:
(i) GRAB has locus standi and
(ii) The prerogative to deal with civil emergencies cannot be revived, and even if it can be revived, its exercise is judicially reviewable (i.e. it is justiciable).
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