Plans to block “excessive” challenges to planning decisions in large infrastructure projects will continue the Conservatives’ attack on judicial review and risk increasing costs, lawyers warn, but lawyers are split on whether this could stifle scrutiny.
Sir Keir Starmer KC announced last week his intention of “streamlining” judicial review — the process by which the legality of decisions made by government or other public bodies can be challenged — as part of the government’s plans to boost economic growth.
The prime minister said he would scrap the initial stage, in which a single judge looks at a claim on the papers to decide if it has sufficient merit to grant permission to proceed to court.
Starmer — who had a long history of appearing in public law cases when he was practising at the Bar — also intends to introduce primary legislation so that in cases where judges in oral hearings at the High Court deem a case to be “totally without merit”, it will not be possible to ask the Court of Appeal to reconsider. It is anticipated that the move will reduce the number of stages in “cynical” legal challenges from three to one.
“For too long, blockers have had the upper hand in legal challenges — using our court processes to frustrate growth,” Starmer said, adding that the government was “putting an end to this challenge culture by taking on the nimbys and a broken system that have slowed down our progress as a nation.”
Whitehall officials said that 58 per cent of all decisions on large infrastructure projects were taken to court, including the plans for offshore windfarms in East Anglia, the new nuclear power station Sizewell C in Suffolk and the A47 national highway project in Norfolk. Judicial review claims in all those cases were dismissed.
But lawyers and campaigners hit back at Starmer, arguing that no “challenge culture” exists and warning of the detrimental impact on access to justice and the need for scrutiny of the legality of decisions.
Lawyers stress the importance of scrutiny of the legality of large infrastructure projects and the ability to challenge the impact of construction
ALAMY
Given the impact of large infrastructure projects, it is unsurprising that more than half are challenged, says Lee Marsons, a research fellow at the Public Law Project. He argues that under the government’s plans the ability to challenge significant decisions will be based on the opinion of just one High Court judge.
Judges can get decisions wrong, especially in the fast-developing area of environmental law, suggests Gregory Jones KC of Francis Taylor Building chambers. The planning law specialist says there have been examples where challenges were held to be unarguable by the High Court and Court of Appeal, only to be held correct by the Supreme Court. One such case, says Niall Toru, a lawyer at the environmental group Friends of the Earth, was Sarah Finch’s successful challenge to Surrey county council’s decision to permit an oil well at Horse Hill near Gatwick airport.
Richard Atkinson, president of the Law Society of England and Wales, which represents solicitors, warns that the proposed changes to replace the paper permission stage with an oral hearing could increase the cost and length of the process, which may discourage claimants and curb access to justice.
All parties — including the government — Marsons explains, would have to pay for the costs of attending oral permission hearings in cases that could be dealt with on the papers alone.
Toru criticises the government for attempting to “scapegoat” claimants for the country’s low growth, warning that the changes will “favour developers” and “undermine valid concerns” about projects that will affect ordinary people and the environment.
In the wake of a series of rulings against the government — most notably, the Supreme Court’s 2019 decision that the then prime minister Boris Johnson unlawfully suspended parliament ahead of Brexit — critics suggested that judges were going beyond their role in upholding the law and taking political decisions that should be left to the legislature.
The Conservative government sought to limit the scope and impact of judicial reviews — and Starmer’s plans “carry on the attacks by the previous government”, Toru says. But on the other side, Tom Barton, a planning partner at Mishcon de Reya, welcomes the proposals that he hopes will end “cynical” challenges that delay or kill off projects.
“There is currently a disproportionate amount of power in the hands of groups, often well-funded and experienced in judicial review matters, who, against the national interest, wish to stall projects,” he says. Looking beyond judicial review in planning cases, Katy Colton, the partner heading Mishcon’s politics and law group, argues that a fall in cases suggests that abusive claims are not being made.
She notes that safeguards are already built into the process to prevent abuse, including strict time limits — which in planning cases are six weeks, rather than the usual three months. Extending limitation periods, Colton suggests, may result in more cases settling.
She also argues that better legislation and decision-making would lead to fewer judicial reviews. While Jones suggests that lengthy delays often result from slow decision-making by the secretary of state.
Others argue that more meaningful community engagement would cut claims and call for proper funding of the justice system so courts can deal with cases faster. While Barton’s plea is for specialist planning judges to deal with the cases concerning nationally significant infrastructure projects
Catherine Baksi; Thursday January 30 2025, 12.01am GMT, The Times