Although the international norm, the courts’ power of judicial review has long been a source of political frustration, dissension and tense debate in Britain. This became particularly acute first during the dispute over Brexit in 2016-19, and more generally in the 2019-24 parliament, with judges at times attacked as ‘enemies of the people’ for frustrating the agenda of particular governments. A recent article in The Critic has even floated a proposal for the complete abolition of judicial review.
Over the last decade significant attention has been paid to the need to reform the UK’s planning system and the role of judicial review and the courts to ‘get Britain building’. And it was on this basis that the Starmer Government announced significant changes to the statutory judicial review process for major infrastructure projects at the end of January.
The rationale for doing so, according to the government, is to decisively break the procedural deadlocks supposedly holding Britain’s economy back. ‘For too long,’ the Prime Minister has declared, ‘blockers have had the upper hand in legal challenges – using our court processes to frustrate growth. We’re putting an end to this challenge culture by taking on the NIMBYs and a broken system that has slowed down our progress as a nation.’ Indeed, the government claims that ‘[d]ata shows that over half – 58% – of all decisions on major infrastructure decisions were taken to court, getting in the way of the government’s central mission to grow the economy’, linking the proposals directly to its growth-focused agenda.
In fact, these proposals are not strictly speaking the result of a radical reorientation of British policy by Labour, but the implementation of changes recommended by a report produced by Lord Banner KC as commissioned by Rishi Sunak’s government in 2024 and published in October last year.
And whilst some groups, ranging from the Friends of the Earth campaign group to the Law Society have expressed concerns about these new plans, the proposed reforms are relatively modest and represent a tightening of rules governing challenges to the construction of ‘Nationally Significant Infrastructure Projects’ (NSIPs).
The government’s proposed changes apply exclusively to a specialised process for the review of major infrastructure projects. These projects relate to a specific set of domains of ‘national importance’ like energy, transport, and water, amongst others, which was separated from the usual planning process controlled by local authorities by the Planning Act (2008). Much of this has been laid out recently in a detailed report from the UK Constitutional Law Association. Permission is then usually granted to these projects on the basis of pre-established criteria laid out in National Policy Statements, the relevance of a project to which is adjudicated by the appropriate secretary of state, who is then empowered to issue a Development Consent Order allowing the project to proceed.
At present (in England and Wales, but not Scotland or Northern Ireland), opponents of a given project then have three chances of securing a full judicial review, or ‘three bites of the cherry’, as Lord Banner has put it:
- A written objection reviewed without an oral hearing by a High Court Judge.
- An oral hearing in the High Court.
- A hearing in the Court of Appeal.
Following Lord Banner’s proposal, the government intends to scrap the first of these stages, requiring an oral hearing in order to proceed to a judicial review, and to allow the High Court to block vexatious litigants ‘without merit’ from appealing their verdict.
According to the government these reforms mean that there will now be ‘just one attempt at legal challenge for cynical cases lodged purely to cause delay rather than three,’ which ‘will strike the right balance between ensuring ongoing access to justice and protections against genuine issues of propriety, while pushing back against a challenge culture where small pressure groups use the courts to obstruct decisions taken in the national interest.’
The removal of the first stage appears to be a particularly sensible measure. As Lord Banner’s report indicates, in cases where approval of an NSIP is blocked by the courts at the written stage, around half of these verdicts are then overturned when an oral hearing is conducted. In turn, half of all appeals against High Court decisions, from both supporters and opponents of an NSIP, are subsequently overturned by the Court of Appeal.
That these changes will actually see significant numbers of litigants denied at least two bites of the cherry is, however, not certain. Since it is left to the High Court’s discretion, if judges adopt a fairly narrow definition of “unmeritorious challenges” we might assume that many if not most litigants will be unaffected by the changes when seeking judicial review. For instance, whilst the government press release suggested that the new rules would have allowed the High Court to block an appeal from activists opposed to the Sizewell C nuclear plant, whose case they described as ‘utterly hopeless’, in fact only some parts of the case received that designation, meaning that the appeal could still have proceeded on other grounds.
The scope of reform is, therefore, more limited than the sound and fury from both supporters and opponents might suggest. Far from a radical overhaul of planning rules, these are rather technical changes to raise the barrier to entry for vexatious litigation, but which still allow significant scope for even nationally vital infrastructure projects to face multiple challenges in the courts. Crushing the NIMBYs this is not. But nor, indeed, does it represent a significant denial of equal access to justice in the courts for campaigners against significant infrastructure projects.
That said, as a means of streamlining a complicated process with real potential to delay nationally important infrastructural projects, this is clearly a common-sense step in the right direction, and one which ought to enjoy bipartisan support. Whether further measures will be needed to enable the kind of infrastructural transformation envisioned by the government remains to be seen, but it is hard to imagine the consequences of the present reforms proving all too radical. Unless we want Britain to be a nation of nuclear powerplants and NIMBY councils, the government will have to tackle local government planning restrictions with all of the rhetorical ferocity of its reforms to infrastructure judicial review – and less of the practical hesitance.
Angus Brown.
Angus Brown is a Collegiate Assistant Professor and Harper-Schmidt Fellow at the University of Chicago, where he works on the history of constitutional thought.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.