Clembury is a small market town in South Oxfordshire, England. For the past 20 years its inhabitants have been arguing about whether or not it would be appropriate to build a dual carriage way by pass around the town to replace the narrow road system that regularly clogs up the traffic. A clear majority favors’ the by-pass but a few determined individuals oppose it. Successive governments have been determined to build a by-pass around Clembury. At one point in the late 1990s a Clembury by-pass road had been included in the U.K government’s road building plans. Construction of the Clembury by-pass halted, however, by a well organized group of protestors, road construction elsewhere in the U.K has been similarly frustrated.
The building of major roads such as in England is now governed by the new (fictional) Highway construction Act (“The Act”) which requires (1)an audit of anticipated environmental damage and (2) consultation with citizens likely to be effected by road construction before any new roads are built-and all of this “notwithstanding any legislation on the contrary”. Hardly any new roads have been built since the Act was passed by Parliament.
South Oxfordshire has been hit by months of torrential rain in the summer and winter of 2011-2012. Roads have been washed out in many new towns, including Clembury. Accordingly, the UK Governments Secretary of state for transport has announced a nationwide program of immediate road rebuilding 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 High Way Construction Act 2011, the Secretary Of State For Transport stated that the government was using prerogative powers to deal with national emergencies, and that the public would support it in doing so. A little-noticed Section of the Act repealed all existing legislation dealing with civil emergencies’. The Secretary Of State claimed that prerogative powers to deal with civil emergencies’ were thereby “revived”. Clembury is first on the long list for road re-building, and new dual carriageway by pass is included in the plans.
A newly formed group of anti-road protestors, Clembury Residents Against the by-pass (“CRAB”), oppose the government’s actions. They have commenced judicial review proceedings. CRAB members (none of whom have ever been involved in illegal protest. Instead they have devoted time and money to accumulating research, from Clembury and elsewhere, on the environmental economic and other effects of building a by-pass road around small towns.
The divisional court rejected the claim of judicial review. Lord Justice Rains of the view that the Crowns prerogative to deal with civil emergencies could be revived. The various recently repealed statues dealing with civil emergencies’ had not destroyed this prerogative; these statues 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 , Lord Justice Rains took the view the courts had no place reviewing the exercise of such prerogative given the importance and political nature of the decision involved emergencies’ were analogous to(if not embraced by) national security in his view. Furthermore, Lord Justice Rains decided that they were decided that on close examination of the of the applicant, CRAB, it was clear to him that they were ideologically committed meddlers from outside Clembury masquerading as concerned residents, and therefore they should not be granted standing to claim.
Justice torrent was more impressed with CRABS genuine and concern expertise, but she took the view that there was no shortage of potential applicants who could come forward to Clembury to vindicate the rule of law in cases such as this. Accordingly, she would have refused grant standing to claim. She disagreed with lord Justice Rains on the issue of the prerogative. In her view, once a prerogative has been replaced by statue the prerogative can never be revived. However, if a prerogative can be revived, she was in principal prepared to review its exercise. Both of these conclusions regarding the prerogative seemed to her consistent with a modern approach of the constitution.
Giving the judges the views on the standing issue, the claim for judicial review was unsuccessful.
CRAB now appeals to the court of appeal (CIVIL DIVISION) on the grounds that:
1)CRAB has a standing on judicial review in this instance and
2)The prerogative to deal with civil emergency cannot be revived,and even if it can be revived,its exercise is judicially re-viewable (i.e is it justiciable)
please use case laws and acts to explain your answer