Reforms to procedure for nationally significant infrastructure judicial reviews confirmed

The Government has announced significant changes to judicial review procedure in respect of nationally significant infrastructure projects (NSIPs), aimed at speeding up delivery of those key projects as part of its commitment to clean power and its broader growth agenda.

The changes follow a review and recommendations by Lord Banner KC, who discussed these issues with us in a recent podcast.

The headline points include:

• all NSIP judicial review challenges will automatically go to a hearing to determine whether the claim is arguable, getting rid of the current initial stage of a judge making that decision on the papers;
• if a claim is certified as totally without merit in that oral hearing, that will be the end of the road for the claim with no possibility of further appeal; and
• all other claims will still be allowed to seek an appeal of a refusal of permission for judicial review.

The Government has also indicated that it will accept other recommendations made by Lord Banner, including:

• introducing non-mandatory case management conferences to NSIP judicial reviews;
• formally designating NSIP judicial reviews as significant planning court claims; and
• working with the judiciary to introduce target timescales for NSIP judicial reviews in the Court of Appeal and the Supreme Court.

News reports suggest the latter will be accompanied by a requirement to publish data on compliance with these target timeframes, to provide an extra incentive for the courts to get the cases through the system quickly.

At present there is very little detail beyond brief statements from the Government, but its response to the call for evidence on this matter is to be published in due course, setting out how the measures announced will be taken forward and providing the Government’s views on the other options considered as part of the call for evidence.

Comment

There are obvious advantages to speeding up the delivery of key infrastructure, which has the potential to bring significant benefits to the country and its citizens. However, as we have previously commented, it is vital that this is balanced against maintaining access to justice. The approach the Government has ultimately chosen does appear to walk a reasonable middle path on that point, maintaining the right to seek an appeal for most cases.

The only cases that will be restricted to one chance to persuade a judge are those certified as totally without merit, which is a high threshold and not a label currently used readily by judges. It remains to be seen whether that approach changes, and the pressure to prevent delays to NSIPs leads to judges being more willing to certify cases as totally without merit, but in our experience the judiciary has access to justice at the forefront of its mind, particularly in the Administrative Court, and the Government's own growth agenda is unlikely to lead to a significant change in that culture.

Since there is currently no real detail from the Government, it is unclear whether the changes will also be applied in broader planning judicial reviews, a possibility raised in the Government's call for evidence last year. Such a move would likely be more controversial given there are not the same obvious broader public interest objectives involved in smaller scale building projects, and the justification for impinging on access to justice is therefore not as strong.

From a practical perspective it will be of particular interest to see how the appellate courts react to the idea of target timescales for one particular category of cases, given the breadth of significant public interest cases across all areas of law they have to fit in, many with their own reasons for expedition.

As we have previously discussed, many of these procedural changes have pros and cons. Automatic permission hearings will create additional cost in cases which might otherwise have been granted permission on the papers, and case management conferences face their own cost and scheduling difficulties. However, taken in the round it is likely that these changes will have some streamlining effect on the small number of NSIP judicial reviews that are brought every year. Since it is likely to be only a handful of cases at most that are given this specialist treatment, and potentially allowed to jump the queue in terms of getting through the court system, the reforms have struck what appears to us to be a sensible compromise in the interests of reducing delay to key infrastructure projects.