Introduction

The case of JOHN PATON & SONS LTD v GLASGOW CITY COUNCIL AND THE SCOTTISH MINISTERS ([2023] ScotCS CSOH_74) brought before the Scottish Court of Session on October 31, 2023, marks a significant judicial examination of environmental regulation and its intersection with business interests and human rights. The petitioner, John Paton & Sons Ltd, a vehicle repair business operating within Glasgow's Low Emission Zone (LEZ), challenged the lawfulness of the LEZ scheme implemented by Glasgow City Council (GCC) and the accompanying penalty regulations established by the Scottish Ministers.

The crux of the dispute revolved around the LEZ's impact on the petitioner's business operations, specifically regarding non-compliant vehicles entering the LEZ and the resultant penalties. The petitioner sought judicial review on three grounds: the scheme's contribution to air quality objectives, human rights implications under the Human Rights Act 1998, and the legality of the consultation process preceding the scheme's enforcement.

Summary of the Judgment

Justice Lady Poole delivered the judgment, ultimately refusing the petitioner's challenges. The court meticulously examined the arguments, statutory provisions, and expert testimonies presented. The key findings include:

• Delay Argument Rejected: Glasgow City Council and Scottish Ministers' plea that the petition was brought out of time was dismissed. The court found the delay reasonable, given the circumstances and efforts to resolve the matter informally.
• LEZ Scheme Lawfulness: The LEZ scheme was upheld as lawful and rational. The court determined that GCC had a reasonable factual and scientific basis to conclude that the LEZ would contribute to meeting and maintaining air quality objectives.
• Human Rights Consideration: The petitioner's claims under Article 1 of Protocol 1 of the European Convention on Human Rights were dismissed. The interference with the petitioner's possessions was deemed limited and justified by the legitimate aim of protecting public health and the environment.
• Legislative Competence: Challenges to the penalty provisions in the 2021 Regulations were not substantiated, primarily because the petitioner did not demonstrate victim status regarding penalties.
• Consultation Process: The court found no evidence of unlawful consultation or predetermination of the LEZ scheme outcome. The consultation process was deemed thorough and in compliance with statutory requirements.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to support its conclusions:

• Kenman Holdings Ltd v Comhairle Nan Eilean Siar (2017): This case defined the elements of a mora plea, emphasizing that without all three elements—mora, taciturnity, and acquiescence—the plea fails.
• R (Law Society) v Lord Chancellor (2019): Highlighted the judiciary's role in adjudicating the legality of public authority decisions without delving into their merits, reinforcing the separation of powers.
• R (Mott) v Environment Agency (2018): Addressed the proportionality of penalties in environmental regulations, underscoring that penalties must be effective, proportionate, and dissuasive.
• Fareham Borough Council v Mayor and Burgess of the Borough of Fareham (1995): Discussed the limits of judicial intervention in policy decisions of local authorities.
• In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (2015): Provided the framework for analyzing human rights implications, particularly concerning interference with possessions.

Legal Reasoning

The court's legal reasoning was robust and structured, focusing on statutory interpretation, the application of human rights principles, and the deference owed to public authorities in policy matters.

• Statutory Framework: The court delved into the Transport (Scotland) Act 2019, emphasizing the powers granted to local authorities to establish LEZs and the regulatory environment governing penalties.
• Judicial Review and Mora Plea: Reiterating the principles from Kenman Holdings, the court found that the petitioner's delay in bringing the challenge did not satisfy the requirements for a successful mora plea.
• Air Quality Objectives: The interpretation of "contributing towards meeting air quality objectives" was pivotal. The court affirmed that this encompassed both achieving and maintaining air quality standards, aligning with EU directives still influential post-Brexit.
• Human Rights Analysis: Applying the tests from established human rights cases, the court found that the interference with the petitioner's possessions was minimal, proportionate, and justified by the legitimate aims of public health and environmental protection.
• Proportionality and Legislative Competence: The court scrutinized whether the penalty levels were proportionate and upheld legislative competence, finding that the authorities acted within their discretionary powers.

Impact

This judgment reinforces several important legal principles and has broader implications for environmental regulation, business operations within regulated zones, and the balance between public interests and individual or business rights.

• Deference to Public Authorities: The court affirmed the judiciary's role in respecting the expertise and discretion of public bodies in environmental matters, particularly when complying with statutory obligations.
• Clarification on Mora Pleas: By rejecting the mora plea, the judgment underscores the tightening of procedural requirements for judicial review petitions, emphasizing the need for timely challenges.
• Human Rights Balancing: The decision delineates the boundaries of business rights under human rights law, particularly in contexts where public health and environmental objectives prevail.
• Legislation Post-Brexit: The references to retained EU law highlight the continuing influence of EU directives on Scottish legislation, a crucial consideration for future regulatory developments.
• Environmental Policy Enforcement: The judgment sets a precedent for the enforcement of LEZs, supporting stringent measures to achieve environmental and public health goals.

Complex Concepts Simplified

Conclusion

The ruling in JOHN PATON & SONS LTD v GLASGOW CITY COUNCIL AND THE SCOTTISH MINISTERS serves as a reaffirmation of the judiciary's respect for the discretion of public authorities in matters of environmental regulation and public health. By upholding the LEZ scheme, the court underscored the necessity of stringent measures to meet and maintain air quality objectives, aligning with both Scottish and retained EU law. The dismissal of the human rights and legislative competence challenges further delineates the boundaries within which businesses must operate in regulated environments. This judgment is poised to influence future cases involving environmental regulations, the legitimacy of penalty schemes, and the intricate balance between business interests and public welfare.

For businesses operating within LEZs or similar regulatory frameworks, this judgment highlights the importance of compliance with emissions standards and demonstrates the courts' support for robust environmental measures. Additionally, it emphasizes the limited scope for judicial intervention in policy decisions, particularly when such decisions are grounded in comprehensive statutory frameworks and informed by expert evidence.