This is the fourth in a series of commentaries by the Bermuda Environmental Sustainability Taskforce (BEST) on the special report by Bermuda’s Ombudsman titled “Today’s Choices, Tomorrow’s Cost — a Systemic Investigation into the Process and Scope of Analysis for Special Development Orders (SDOs).” One recurring theme in the Report is the Bermuda Government’s obligation to uphold its commitment as a signatory to the UK Environmental Charter and its relevant international laws.
In our last commentary we noted that as the Tucker’s Point SDO (TP SDO) decision fell short of that obligation, it should be made the subject of a Judicial Review. In this commentary, we will attempt to explain in layman’s terms just what a Judicial Review is and what it would accomplish:
The laws in every democracy are a set of legal principles governing the exercise of power by public bodies, like the Government of Bermuda. If a decision is made in breach of these principles then that decision may be challenged in the Courts[i]. Briefly, a decision may be unlawful if:
· the decision maker does not have the power to make the decision, or is using the power they have for an improper purpose;
· the decision is irrational;
· the procedure followed by the decision-maker was unfair or biased.
It is also unlawful for a public body NOT to do something it has a duty to do, such as in the case of the Tucker’s Point SDO where the government had a self-imposed duty to require an Environmental Impact Assessment prior to making a decision.
Decisions made or a failure to act by a public body can be challenged. These challenges can follow one or more paths:
1. One can make an official complaint using the public body’s Complaint Procedure, if available.
2. One can complain to an Ombudsman (one usually has to go through the Complaint Procedure first).
3. One can request that the public body participate in mediation or other form of ‘alternative dispute resolution’.
4. In some contexts, there is a tribunal or statutory appeal process available.
5. One can ask a judge to examine the decisions using Court proceedings called ‘Judicial Review’ if there is no suitable alternative remedy.
Obviously, lawful societies provide for several reasons and pathways for challenging decisions made by a public body. We are grateful to the Ombudsman for bringing these to the public’s attention. However, in the case of the Tucker’s Point SDO, the Ombudsman’s main concern was about the way Members of both houses of our Legislature were led into an unduly hasty decision of granting the TP SDO without having all the pertinent information laid before them. As a signatory of international conventions, the Government of Bermuda had an obligation to carry out due diligence in establishing processes and procedure that support the decision making process. An Environmental Impact Assessment, as an integral part of the decision making process, must be carried out prior to granting, even in-principle, major development orders like the one granted to Tucker’s Point.
According to the Ombudsman’s analysis, while the principle legislation (the Development and Planning Act [Sect. 15]) cannot be reviewed by the Courts, the Special Development Order itself is subordinate legislation and is subject to review.
Were the TP SDO put to a Judicial Review, the Court could:
· Quash the Orders — the original decision is struck down and the public body (Government) has to take the decision again (lawfully, this time);
· Prohibiting Orders — the Government is forbidden from doing something unlawful in the future;
· Issue Mandatory Orders — the Government (public body) is ordered to do something specific which it has a duty to do, such as insisting that an EIA be carried out before granting the TP SDO;
· Issue a Declaration — for example, on the way to interpret the law in future, or a declaration that a legislative provision is incompatible with the DPA (the principle legislation);
· Issue an Injunction — this is usually a temporary remedy, halting the project until the full application for judicial review is heard;
· Award Damages — assign reparative or punitive costs. This is rare, but may be available in some cases, particularly where there has been a breach of an individual’s rights.
All of these remedies are discretionary — More than one can be applied for in any particular case but the judge does not have to order any remedy at all.
By its decision to grant the TP SDO the Bermuda Government back-pedaled on its duty, as signatory on behalf of the people of Bermuda, to uphold the principles and commitments of the UK Environmental Charter. That decision could well benefit from a test in the Courts.
Our next commentary will focus on the conditions attached to the TP SDO, and whether, as they were promoted at the time, they were an adequate substitute for an EIA.
[i] “What is Judicial Review.pdf?”. www.publiclawproject.org.uk/downloads/WhatIsJR.pdf. pp. 1, 4.