Government Proposes Reforms to Expedite Infrastructure Judicial Reviews

January 29, 2025

The recent announcement by Sir Keir Starmer on January 23 has sparked significant discussion regarding the government’s plans to introduce restrictions on judicial review of infrastructure projects. The proposal aims to eliminate delays caused by legal challenges to the development of infrastructure, thereby facilitating faster project completions. This article delves into the background, implications, and future perspectives of these reforms, emphasizing their potential impact on the legal landscape of infrastructure development.

Background and Context

Importance of Nationally Significant Infrastructure Projects (NSIPs)

Nationally Significant Infrastructure Projects (NSIPs) are pivotal to the UK’s infrastructure strategy. These projects encompass energy, transport, water, and waste management facilities, which are critical to the nation’s development. NSIPs follow a streamlined consenting process under the Planning Act 2008, differing from the traditional planning approval system administered by local planning authorities. This act outlines a two-stage process for NSIP approvals. The first stage involves the creation of National Policy Statements (NPS), which are policy frameworks that guide decisions on specific types of infrastructure projects. Twelve such NPSs exist, each addressing different infrastructure needs, such as renewable energy and airports.

The second stage requires developers to seek a Development Consent Order (DCO) from the Secretary of State. The consent is granted based on the guidelines specified in the corresponding NPS. The streamlined process aims to mitigate delays and disputes, which were prevalent in the protracted planning inquiries of the 1980s and 1990s, including notable cases like Heathrow Terminal 5 and Sizewell B nuclear reactor. Despite these measures, there has been growing concern regarding judicial review claims challenging the granted DCOs, leading to delays, increased costs, and uncertainty for developers.

Historical Context and Challenges

The protracted inquiries of the 1980s and 1990s had a significant impact on the UK’s approach to infrastructure development. Heathrow Terminal 5 and the Sizewell B nuclear reactor are prime examples of projects hampered by lengthy and contentious planning processes. In response to these challenges, the Planning Act 2008 was enacted to streamline the approval process for Nationally Significant Infrastructure Projects (NSIPs), providing a more predictable and efficient path for developers. However, while the act succeeded in establishing a faster consenting process, it did not fully address the issue of judicial review claims, which can still result in substantial delays and increased costs for developers.

The judicial review mechanism allows individuals and organizations to challenge decisions made by public bodies, including those related to infrastructure projects. Although it is an essential tool for ensuring accountability and legality, the rise in judicial review claims has created a bottleneck in the development pipeline. This development has prompted the government to explore potential reforms aimed at expediting infrastructure projects without compromising the ability to challenge decisions that may be unlawful or unjust. The proposed reforms seek to strike a balance between efficiency and accountability, ensuring that the benefits of streamlined processes are not overshadowed by delays caused by legal challenges.

Key Themes and Reform Proposals

Recommendations from the Banner Review

The judicial review reforms proposed by the government largely resonate with recommendations from the Banner Review, an independent assessment led by Lord Banner KC. Commissioned by the previous Conservative government, the review aimed to identify options to prevent inappropriate legal challenges while maintaining access to justice in compliance with domestic and international law. One of the key proposals from the Banner Review focuses on the permission stage of judicial review claims. Presently, claimants have three chances to obtain permission to proceed: an initial assessment based on documents, an oral renewal hearing in the High Court if initially denied, and a subsequent application to the Court of Appeal if denied again.

The Banner Review suggested eliminating the initial papers stage, allowing only one or two opportunities for oral hearings. The government has adopted this recommendation by proposing to remove the papers stage, retaining the oral hearing in the High Court and potentially one in the Court of Appeal. This change aims to expedite the judicial review process while still providing claimants with an opportunity to present their case in court. Additionally, the Banner Review highlighted the importance of introducing target timescales in the Court of Appeal for processing claims. Such measures would ensure swift resolutions, similar to the target timescales already in place in the Planning Court.

Proposed Changes to the Judicial Review Process

The government’s plan to reform the judicial review process includes several significant changes aimed at reducing delays and increasing efficiency. By eliminating the papers stage, the proposed reforms reduce the number of opportunities for claimants to seek permission to proceed, focusing instead on oral hearings. This change aligns with the Banner Review’s recommendation and reflects a broader effort to streamline the judicial review process for infrastructure projects. The retention of oral hearings in the High Court and Court of Appeal ensures that claimants still have the opportunity to present their cases, while the removal of the papers stage helps expedite the process.

Moreover, the introduction of target timescales for claims in the Court of Appeal is a notable suggestion from the Banner Review that the government may implement. These target timescales would provide a clear timeframe for processing claims, promoting quicker resolutions and reducing the uncertainty that can result from prolonged judicial review proceedings. By adopting these recommendations, the government aims to create a more efficient judicial review process that supports the timely completion of infrastructure projects while maintaining access to justice. These reforms represent a significant shift in the legal landscape of infrastructure development, emphasizing the need for balance between efficiency and accountability.

Totally Without Merit (TWM) Certification

Current TWM Certification Process

The Totally Without Merit (TWM) certification process is a critical element in the proposed judicial review reforms. Currently, if a High Court judge deems a judicial review claim as TWM at the papers stage, the claimant cannot seek an oral hearing. Instead, they can only apply to the Court of Appeal based on documents. This existing process is designed to filter out claims that lack any substantive merit, thereby reducing the burden on the court system. However, the government’s new proposal seeks to prevent any further appeal if a claim is certified as TWM after an oral hearing in the High Court. This adjustment means that the option to seek permission from the Court of Appeal would be removed, effectively curbing the progression of evidently meritless claims.

The proposed changes to the TWM certification process aim to address concerns about delays and inefficiencies caused by claims that have little chance of succeeding. By eliminating the option for further appeal in cases deemed TWM after an oral hearing, the government hopes to streamline the judicial review process and prevent unnecessary hindrances to infrastructure projects. This approach, however, is not without its critics, as concerns about accountability and the potential for mistakes in TWM certifications remain significant.

Rationale and Concerns

The rationale behind reforming the TWM certification process is to eliminate unnecessary delays and reduce the burden on the judicial system caused by evidently meritless claims. By preventing further appeals on TWM-certified claims after an oral hearing in the High Court, the government aims to ensure that only those claims with genuine merit progress through the judicial review process. This change is intended to expedite the resolution of legal challenges and facilitate the timely completion of infrastructure projects. However, this proposal raises significant concerns about accountability and the potential for errors in TWM certifications.

One of the primary concerns is the increased stakes placed on the decisions of High Court judges. If a judge certifies a claim as TWM, the claimant loses the opportunity for further appeal, which raises the risk of potential mistakes going unchallenged. Critics argue that this could undermine access to justice and reduce judicial oversight, particularly in cases where the certification might be questionable. Balancing the need for efficiency with the imperative to protect legal rights and ensure accountability remains a central challenge in implementing these reforms.

Public and Sectoral Responses

Environmental and Legal Criticisms

The announcement of the proposed reforms has elicited a range of reactions from environmental groups, legal experts, and various stakeholders. Critics argue that these changes could undermine accountability and restrict access to justice. Senior lawyer Niall Toru from Friends of the Earth, along with Dr. Ruth Tingay of Wild Justice, have voiced concerns about the implications of blocking appeals on claims deemed TWM. They emphasize that reducing the opportunities to challenge decisions may lead to accountability issues and a lack of scrutiny for potentially unlawful or unjust decisions. These critics argue that the proposed reforms could disproportionately impact environmental and public interest groups that rely on judicial review to hold the government and developers accountable.

Moreover, there is apprehension about the potential erosion of legal rights and the ability to challenge decisions that have significant environmental and social impacts. The judicial review process serves as an essential check on the exercise of governmental power, ensuring that decisions are made lawfully and fairly. By restricting the avenues for appeal, critics fear that these reforms may weaken this important mechanism and hinder the ability to address legitimate concerns. This perspective underscores the need for a balanced approach that considers the importance of accountability and access to justice in the context of infrastructure development.

Support from Proponents

Conversely, proponents of the reforms argue that the changes are necessary to streamline the judicial review process and facilitate the timely completion of infrastructure projects. Sam Dumitriu of Britain Remade, for example, has welcomed the reforms but suggested further measures to preempt legal challenges for significant projects like Heathrow. Dumitriu’s proposal includes the use of private bills with ouster clauses to limit the grounds for legal challenges, thereby providing a more predictable and expedited path for project approvals. This perspective reflects a broader call for more extensive reforms to address the inefficiencies and delays associated with judicial review claims.

Supporters of the proposed reforms emphasize the importance of balancing the need for accountability with the imperative to deliver critical infrastructure projects efficiently. They argue that the current judicial review process allows for too many opportunities to delay projects, resulting in increased costs and uncertainty for developers. By adopting streamlined measures and limiting the avenues for meritless claims, proponents believe that the government can create a more favorable environment for infrastructure development. This approach seeks to ensure that while legal rights are protected, the focus remains on delivering projects that are essential for the nation’s growth and development.

Broader Discourse on Infrastructure Delivery

Balancing Efficiency and Legal Rights

The reforms highlight a broader discourse on balancing efficient infrastructure delivery with protecting legal rights and environmental concerns. The government’s framing of a “challenge culture” points to an inclination for more robust measures against legal challenges perceived as obstructive. This perspective suggests a possible trajectory for future reforms aimed at further limiting the grounds for judicial review claims and expediting the approval process for infrastructure projects. While the need for efficiency is clear, the challenge lies in ensuring that these measures do not undermine the principles of accountability and access to justice.

Balancing these competing interests requires a nuanced approach that recognizes the importance of judicial review as a tool for upholding the rule of law and protecting public interests. The proposed reforms seek to address legitimate concerns about delays and inefficiencies in the judicial review process, but they also raise important questions about the impact on legal rights and environmental protections. As the government moves forward with these proposals, engaging with stakeholders and considering their perspectives will be crucial to developing a balanced and effective framework for infrastructure development and judicial review.

Future Perspectives

On January 23, Sir Keir Starmer made a significant announcement that has triggered widespread debate. He revealed the government’s plan to impose restrictions on judicial review concerning infrastructure projects. The main goal of this proposal is to cut down on delays that result from legal battles, ensuring quicker completion of infrastructure developments. The proposal will change how legal challenges can be made, potentially speeding up projects significantly.

This article takes a closer look at the origins of these reforms, their broader implications, and what they could mean for the future of infrastructure development. The changes could have a profound impact on the legal framework surrounding these projects. If implemented, they could streamline the process, making it more efficient and less prone to the long delays currently experienced.

On the one hand, proponents argue that removing these legal hurdles is necessary for the country to modernize its infrastructure quickly and effectively. On the other hand, critics caution that such reforms could undermine the checks and balances that judicial reviews provide, potentially compromising due diligence and accountability. Balancing the need for speedy project completions with the importance of legal oversight remains a complex issue.

Overall, Sir Keir Starmer’s proposal could reshape the landscape of infrastructure development by prioritizing faster execution over lengthy legal procedures. It remains to be seen how these changes, if enacted, will unfold and what new challenges or benefits they might bring.

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