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domcoop wrote: ↑Thu Dec 14, 2023 23:05
Judicial review involves a conflict between the judiciary and the executive (the Government, via the DfT and Highways England) and legislature (Parliament who pass the laws). It is very, very important that judges don't usurp the role of the other bodies and take it upon themselves to pass law, or make decisions implementing things.
For that reason a judge on a judicial review is absolutely prohibited from determining whether something is "better" or not. The law - passed by Parliament - says the Planning Inspector has to make that decision. And the judge can not decide what proposals should or should not be taken forward. The law - passed by Parliament - says that Highways England have to do that.
What the judge can decide is effectively one of two things. Firstly, have the relevant bodies complied with the law? Secondly, have they made their decision properly?
On the first thing, if the law, for example, says you have to do three bat assessments, six months apart, but they only did two then the thing can be ruled unlawful.
On the second thing, if the law was followed but the decision making process was defective, usually because the decision maker took into account something they weren't supposed to consider, or failed to take into account something they should have considered, or (something called "Wednesbury Unreasonableness") the decision was so unreasonable that no reasonable decision make would have ever made it, then the decision can be quashed and the decision maker asked to reconsider.
It looks like they are using the second route, saying the process failed to consider sufficient alternatives. But of course the judge won't consider those alternatives, just check that they were considered. Which even the campaign group seem to recognise is unlikely to succeed!
AN interesting case nearly happened in the US 125 years ago. The lower house of the state legislature in Indiana passed a bill which had the effect of declaring that π was 3.2! Before the Indiana Senate debated the issue, the local professor of mathematics managed to explain to some of the senators that π was really 3.1415... and the issue was kicked into the long grass. Now suppose that the professor concerned was not there and the Indiana Senate did pass the bill and the case was referred to court. Would the judges have upheld the "law" (as they are supposed to do). The Wikipedia article has a link to the text of the bill.
It's not uncommon. Most examples aren't as stupid as redefining π. But a contemporary controversy is the UK Parliament being asked to define Rwanda as a "safe" country.
There is a difference in the US, though. Every US state, and the Federal government separately, has a written constitution that restricts what powers the legislature has. A Supreme Court in any State, or the SCOTUS, can declare a statute "unconstitutional" and strike it down. The UK system has no equivalent excepting for EU law (which obviously doesn't apply post-Brexit).
But the UK Parliament can, for example - as happened in England and Wales between 1974 and 2022 - declare someone's marriage to have irretrievable broken down if one of them committed adultery, and declare someone's marriage not to have broken down even if one of them wanted a divorce if they haven't been separated for five years. And courts have to treat that as being the truth even if they know it isn't.
domcoop wrote: ↑Wed Dec 20, 2023 12:50
It's not uncommon. Most examples aren't as stupid as redefining π. But a contemporary controversy is the UK Parliament being asked to define Rwanda as a "safe" country.
There is a difference in the US, though. Every US state, and the Federal government separately, has a written constitution that restricts what powers the legislature has. A Supreme Court in any State, or the SCOTUS, can declare a statute "unconstitutional" and strike it down. The UK system has no equivalent excepting for EU law (which obviously doesn't apply post-Brexit).
But the UK Parliament can, for example - as happened in England and Wales between 1974 and 2022 - declare someone's marriage to have irretrievable broken down if one of them committed adultery, and declare someone's marriage not to have broken down even if one of them wanted a divorce if they haven't been separated for five years. And courts have to treat that as being the truth even if they know it isn't.
As a point of fact the majority of EU laws related to transport were adopted into UK law post Brexit.
The 2022 change to the marriage act was brought in to address the problem in some ethnic communities of children under the age of 18 being effectively forced into arranged marriages.
As a point of fact the majority of EU laws related to transport were adopted into UK law post Brexit.
The 2022 change to the marriage act was brought in to address the problem in some ethnic communities of children under the age of 18 being effectively forced into arranged marriages.
Wrong Act. I'm talking about the Divorce, Dissolution and Separation Act 2020 which came into force in 2022 making divorce "no fault". Prior to that (and after the Matrimonial Causes Act 1973 came into force in 1974) to get divorced you had to prove an "irretrievable breakdown of the marriage". But the only way you could prove this was by establishing adultery, unreasonable behaviour, abandonment, separation for two years and consent of both parties, or separation for five years. Parliament deemed it to be the case the marriage had broken down if the conditions were met and deemed it not to have broken down if they weren't.
So an elderly couple, whose marriage had obviously broken down, but who weren't separated for five years, where the wife wanted a divorce but the husband didn't consent were forced to remain married against her wishes. Supreme Court denies divorce - BBC News There was nothing the court could do.
The Brexit point is not to do with transposing laws or not. Because of some cases "Costa v ENEL", "Van Gend en Loos" and a UK case called "Factortame", the EU Court of Justice held there is a requirement on member states' courts to strike down Acts of Parliament that run contrary to what the EU determines and that Parliament is prohibited from passing an Act that doesn't accord with EU decisions. This happened to the 1988 Merchant Shipping Act.
But that is the only example of a court in the UK overriding an Act of Parliament, and now we aren't in the EU that doesn't apply, obviously.
Good, but will we now get more legal nonsense with appeals?
Yes, they're already trying to raise £15k for an appeal. The appeal would take a few months and if that's lost as well the legal process will be complete.
Also it says
One part of the legal bid, over the DfT's approach to an environmental impact assessment, will be determined at a later date.
Does that mean it hasn't all been dismissed yet!
7 of 8 grounds were dismissed. The judge agreed to NH's request to stay the remaining ground (ground 7), relating to cumulative assessment of carbon emissions across road schemes, pending the Court of Appeal's decision on the A47 scheme. This ground concerns NH's environmental methodology across all schemes, so if that methodology is upheld by the appellate court in the A47 case (as it was by the High Court) that would apply also in the A303 case. If I'm understanding correctly, staying ground 7 until the A47 decision effectively (but counterintuitively) means its further through the legal process than the other grounds, as it's already been heard before the appeal court and is due a verdict any time now - hence why NH applied for the stay.
thomas417 wrote: ↑Mon Feb 19, 2024 14:34
Good. Now can we please just build the damn thing
According to the link below main construction may start in early 2025. Unfortunately this is the other side of a little thing called a general election. A lot of enabling works will be complete, not to mention contracts, so cancelling it might be a bad look.
jackal wrote: ↑Tue Feb 20, 2024 12:13
Yes, they're already trying to raise £15k for an appeal. The appeal would take a few months and if that's lost as well the legal process will be complete.
Can't it then be taken to the Supreme Court as was the case with AWPR?
jackal wrote: ↑Tue Feb 20, 2024 12:13
Yes, they're already trying to raise £15k for an appeal. The appeal would take a few months and if that's lost as well the legal process will be complete.
Can't it then be taken to the Supreme Court as was the case with AWPR?
For English cases, if you lose in the High Court and Court of Appeal, you can't go to the Supreme Court.
deadeye wrote: ↑Tue Feb 20, 2024 20:58
Will be interesting to see the outcome post election. Could be another 1997 moment regarding road projects.
Well it was 1995 when I was made redundant, because of a road scheme cull a bit earlier than that. I don't know whether there was also a cull in 1997, but in the office I worked in, all their schemes had been cancelled by 1995.
I already posted this link in the A47 thread but the protestor for those schemes, Andrew Boswell, has just lost in the Court of Appeal. He's talking about wanting to go to the Supreme Court - I'm not sure on what basis.
Not sure if that clears up the remaining point re the A303.
roadtester wrote: ↑Thu Feb 22, 2024 18:58
I already posted this link in the A47 thread but the protestor for those schemes, Andrew Boswell, has just lost in the Court of Appeal. He's talking about wanting to go to the Supreme Court - I'm not sure on what basis.
Not sure if that clears up the remaining point re the A303.
Perhaps he doesn't yet know whether he can take it further.
I suspect he may be just trying to delay things as much as possible, in the hope that something else might crop up to cause a cancellation.
deadeye wrote: ↑Tue Feb 20, 2024 20:58
Will be interesting to see the outcome post election. Could be another 1997 moment regarding road projects.
Well it was 1995 when I was made redundant, because of a road scheme cull a bit earlier than that. I don't know whether there was also a cull in 1997, but in the office I worked in, all their schemes had been cancelled by 1995.
I can recall that the Chideock bypass was cancelled in 1997 of which I take a local interest, although I suppose the decision may have well been taken before that. I wonder now if there was ever any real intention to build it.
It seems apparent that there is likely to be an election before tunnel construction starts, so I would be curious as to what the respective parties say about the scheme.
deadeye wrote: ↑Fri Feb 23, 2024 19:50
It seems apparent that there is likely to be an election before tunnel construction starts, so I would be curious as to what the respective parties say about the scheme.
I really don't know whether it's likely to be cancelled. I read that Labour are in favour of infrastructure projects, but that is pretty vague. So no idea whether that includes roads. Apparently it was Labour who built HS1. So they have some form for completing major projects. On the other hand canceling the Stonehenge tunnel would save a great deal of money. However that would be leaving a big long running problem, that was just about ready to be fixed.
The cancelled 1997 scheme I always remember was the A40 Gypsy Corner and associated improvements between the Westway and Hanger Lane. A lot of the preparatory work, demolition and if I recall correctly service diversions had been completed when John Prescott pulled the plug. This would have completed the grade separation all the way from the M25 to the Marylebone flyover, and was at a similar or later stage than the preparatory work on the A47 when the plug was pulled.
Completing this would have been a genuine improvement and instead we saw the areas of demolition replaced with housing, some tinkering with gyratories and significant works replacing the railway bridges that would have been replaced by the works. Haven’t been along there in over a decade, but the queue's were still significant last time I went that way.
I don’t think the current scheme is perfect, the tunnel should have been lengthened, but a large part of me thinks it’s time to just get it done.
deadeye wrote: ↑Fri Feb 23, 2024 19:50
It seems apparent that there is likely to be an election before tunnel construction starts, so I would be curious as to what the respective parties say about the scheme.
I really don't know whether it's likely to be cancelled. I read that Labour are in favour of infrastructure projects, but that is pretty vague. So no idea whether that includes roads. Apparently it was Labour who built HS1. So they have some form for completing major projects. On the other hand canceling the Stonehenge tunnel would save a great deal of money. However that would be leaving a big long running problem, that was just about ready to be fixed.
I suppose we will just have to wait and see.
The problem is that our public services are underfunded and falling apart but at the same time, we already have the highest tax burden ever.
Much of the programme for forward investment in several government departments is probably complete fiction - weapons programmes, forty new hospitals, road projects - and is never going to happen. It’s just that nobody, especially the government, has an interest in coming clean about it until after the next election. Look at the way the Post Office Chairman was told to keep a lid on the financial nasties in that organisation until after the election.
So I suspect some roads projects are probably going to be cancelled whoever gets in. Not because Labour, the likeliest winner, is particularly anti-roads or anything - but because we are a stagnating economy with deteriorating public finances and have been for years, and we have to cut our cloth accordingly.
I’m amazed Sunak didn’t delay the cancellation of HS2 until after the election - it was just a dumb decision for him politically (as well as being the wrong decision for the country).
