Proposed changes to judicial review for major infrastructure projects risk “sidelining public accountability”: JUSTICE
Government plans to change the judicial review process for Nationally Significant Infrastructure Projects (NSIPs) could risk "sidelining public accountability, diluting the rule of law and causing practical issues in the courts", a legal reform group has warned.
JUSTICE also raised concerns that reforming the permission stage for NSIP judicial review "could lead to calls for wider reform of judicial review".
Prime Minister Keir Starmer announced the changes earlier this month, confirming that the Government intends reduce the number of permission stages against Development Consent Orders (DCOs) issued for NSIPs in order to end "challenge culture" and keep nationally significant schemes from being delayed.
Under the plans, the current first attempt, also known as the paper permission stage, will be scrapped.
Primary legislation will also be changed so that where a judge in an oral hearing at the High Court deems the case 'Totally Without Merit', it will not be possible to ask the Court of Appeal to reconsider.
In a statement issued after the announcement, JUSTICE said it opposed the removal of the paper permission stage and removing the ability to renew a permission decision classed as totally without merit to the Court of Appeal.
It also criticised the Government's use of the term ‘challenge culture’ claiming that the phrase undermined "a critical mechanism for upholding the rule of law and ensuring public accountability".
It added: "This framing pits economic development against basic legal protections, when the Government itself has acknowledged that the rule of law is fundamental to economic growth."
JUSTICE's response described the paper permission stage as a "cost-effective way for the courts to approve permission where a claim is clearly arguable, provide clear reasons for refusing permission or certify the claim as totally without merit".
"Removing the paper decision would also undermine the use of rolled-up hearings, where a paper decision determines that the permission and substantive decision can be determined together at one oral hearing", the group added.
The group also argued that the paper permission stage promotes access to justice by keeping costs down as it does not involve a resource-intensive oral hearing.
Commenting on the plans to remove the ability to renew a permission decision classed as totally without merit to the Court of Appeal, the group said: "There is very limited data on the success of applications to the Court of Appeal but it is an important safeguard that a case can be reviewed again by senior judiciary.
"It is unclear why it is more time-effective for parties to give a potentially unmeritorious claim one full oral hearing in the High Court, rather than two paper applications."
On its concerns about how the reforms might lead to further changes to judicial review, the group said: "JUSTICE is concerned that reforming the permission stage for NSIP judicial reviews could lead to calls for wider reform of judicial review.
"Judicial review is an important constitutional protection which has come under increased political attack over recent years.
“Restricting NSIP judicial reviews to only the strongest claims risks paving the way for similar restrictions across other areas of judicial review, including planning law more widely.
"Such an approach would undermine the essential role of judicial review in holding the Government accountable and protecting important constitutional safeguards such as access to justice and the rule of law."
JUSTICE made a final call for a "more balanced approach" to planning reform that preserves access to judicial review.
It added: "This is especially when the proposed changes are likely to make the system less efficient and be impractical.
"Given the Government’s belief that there are economic benefits to adhering to the rule of law, they should carefully weigh the potential wider implications of undermining judicial review as an important way of ensuring good quality government decisions and public accountability.
"We would urge them to think again on removing the paper permission stage and limiting the right of access to the Court of Appeal."
The proposal have also been previously met with opposition from the Law Society, which said it disagreed with reducing the number of permission stages.
Adam Carey
