Ripping up judicial review rules would be an assault on democratic values – Inside track

There is a pervasive rhetoric circulating on the role of environmental regulation. It goes like this: regulation blocks growth, slows things down and should be stripped back. Such blunt logic usually misses the point. There are many reasons why we have regulation but none more important than the protection it provides to people and the environment from harmful practices.

Judicial review isn’t regulation, but it has been caught up in the growing wave of attacks on systems and processes which provide rights to citizens and protect the environment. A judicial review is a type of court proceeding in which a judge reviews the lawfulness of a government minister’s or a public body’s decision, action or failure to act. This allows how a decision has been made to be challenged, for example if the process was procedurally flawed or irrational. Judicial review ensures proper implementation of the regulations that are supposed to protect people and the environment.

The previous government appointed Lord Banner KC to consider whether Nationally Significant Infrastructure Projects (NSIPs) “are unduly held up by inappropriate legal challenges”. His review has now been published, prompting the government to re-open a call for evidence.

A worrying threat to access to justice
A new briefing on judicial review from a project called UK Day One calls for reforms to judicial review “to get Britain building again”. But, in its rush to put eye catching recommendations before policy makers, it has not taken proper account of the evidence or the impact some of its proposals would have on access to justice.

The UK Day One report recognises that judicial reviews provide an important means for challenging and scrutinising public decisions. Its main thesis is that reviews are being used to slow down and block major building projects and that, if the government wants to meet its ambitious goals for housebuilding and decarbonisation, it will need to make some fundamental changes, including on who is allowed to bring a judicial review in the first place.

This threatens the positive role of judicial review in ensuring processes and outcomes align with policy intent and protections for people and the environment, and it fails to offer real solutions to barriers to timely decision making.

Decision making on major projects is undoubtedly slow. But the judicial review process is not the major drag the report claims. Eight out of ten decisions on Nationally Significant Infrastructure Projects pass without any legal challenge and the success rate for judicial review claims is high compared with other types of public law challenge, demonstrating that they are fulfilling their purpose: to find and correct flawed decision making. Statistics from the Ministry of Justice show that environmental judicial reviews are twice as likely to be successful at early stages when compared to judicial reviews as a whole.

Restricting who can bring a challenge would be a backward step
To bring a judicial review claim, an individual or organisation must have ‘sufficient interest’ in the contested matter. This is also known as ‘standing’. The courts have interpreted this broadly and flexibly.

UK Day One wants the rules on standing to be narrowed so that only individuals and groups that demonstrate a direct and substantial interest in a specific development would be permitted to bring a judicial review. This ignores the reality that local environmental impacts such as pollution can have non-geographically specific and far wider potential cumulative impacts.

We note that, in his review, Lord Banner finds no convincing case for reducing the rules on standing. This would also put the UK in breach of Article 9(2) of the Aarhus Convention, a United Nations Economic Commission for Europe (UNECE) agreement on environmental democracy, which specifically recognises the role of environmental NGOs in this area. It is important to note that judicial review already has a permission stage that filters out claims that are frivolous, vexatious or lack merit.

The number of judicial reviews has fallen not increased
Crowdfunding and the Aarhus costs regime have not “changed the game” as UK Day One claims. Data from two reports assessing the continuing impact of legislative reform on access to justice in England and Wales under the Aarhus Convention (A Pillar of Justice I and II) reveals that the number of environmental judicial reviews issued per year actually declined significantly over the last decade, falling from 180 a year (at its peak) to around 84 a year in 2022. In his review, Lord Banner finds no case for amending the rules in relation to cost caps to reduce the number of challenges to NSIPs, making an explicit link to the Aarhus Convention.

A challenge to a decision under the Planning Act has a six week limitation period. A limitation period of 28 days, as suggested by UK Day One, would render it virtually impossible to bring cases as claimants already struggle with six weeks, given the length of time it takes to properly assess a decision, instruct lawyers and complete internal governance processes.

In cases where the court refuses permission for a judicial review to proceed, based on written submissions, it will set out the reasons. The claimant may request reconsideration of a court decision at a hearing known as an ‘oral renewal’. UK Day One calls for the option of oral renewal for planning challenges to be removed. But this would be a major setback as oral renewal has been shown repeatedly to reprieve highly significant challenges which go on to succeed and deliver beneficial change. For example, the case of Finch, which was refused permission initially but was ultimately successful in the Supreme Court, and has been recognised as a watershed moment for climate action.

It’s possible to speed up the process without removing rights
The government has published a call for evidence on access to justice in relation to the Aarhus Convention, which closes on 9 December. The previous administration made sweeping changes to judicial review so this is a chance to do better and address concerns many, including the UN special rapporteur on environmental defenders, have raised about access to environmental justice in the UK.

The approach advocated by UK Day One is not the solution to speeding up decisions. Other things the government might consider, to make the process work more smoothly for all concerned, include preventing the government legal department from resisting judicial review permissions and addressing the lack of candour which can sometimes inhibit the process, adding cost and slowing things down.

It should also consider whether the formulation of detailed witness statements explaining the decision making could be sped up and whether the Development Consent Order (the vehicle for consenting a Nationally Significant Infrastructure Project) could be better documented in the first place. Such changes would mean all parties could go swiftly and cheaply direct to effective substantive hearings, speeding up the process without undermining our rights as citizens to participate in it.