The real problem with JR

Why further reform is necessary

Delays to infrastructure projects from legal challenges can be expensive. National Highways reckons the average legal delay to a major road scheme costs the taxpayer between £60 and £120 million. This cost is less the cost of fighting the challenge itself, it is the cost of paying people to stand down while materials get more expensive. And that’s not accounting for all the knock-on costs from waiting out on vitally needed infrastructure upgrades. The extra carbon emissions from burning gas, the higher bills, the thousands of hours of productivity lost to traffic, and so on and so forth.

It was welcome then that a few weeks ago, a judge threw out a legal challenge against a proposed solar farm in Kent. In the past, this would be the first skirmish in a conflict that could go on for over a year, but thanks to new powers in the Planning and Infrastructure Act, Mrs Justice Lieven was able to cut that process short. All things being equal, it looks like that solar farm will be operational a year sooner than it would have been under the system.

So, has Labour solved Britain’s judicial review (JR) problem?

Rachel Reeves doesn’t think so, and I agree. Last week, she announced two additional measures to make it harder for legal challenges to delay and derail infrastructure projects.

For the most important energy projects, subject to Parliamentary approval, the Secretary of State for Energy Security and Net Zero will be able to designate certain projects as being of ‘critical national importance’ and give it the same weight as an act of Parliament. This would make legal challenges near certain to fail. This is a slight throwback. Britain’s most iconic infrastructure was historically built via private acts of Parliament, not the bespoke Development Consent Order process that exists today.

For everything else, Reeves is proposing to change how the JR challenge period works. Currently, opponents of a scheme have a six-week window to bring legal challenges once the Secretary of State has published their decision letter. Under the new system, opponents would still be able to bring legal complaints during that window, but the Secretary of State would then get an opportunity to modify their decision letter once the challenges have been lodged. For example, if a retired computer scientist sued a road project on the grounds that the Secretary of State failed to consider the carbon impacts of the project, then the Secretary of State could update the decision letter to show they had in fact taken these impacts into account. This would make it much easier for judges to dismiss challenges as ‘totally without merit’ (like they did with the Kent solar farm case) and end the process then and there.

On top of that, only challenges brought within that short six-week window could be taken to court. Legal challenges bringing up new issues not covered in that six-week window would be blocked outright.

We are still awaiting the full details, but at face value, both measures are welcome. The former, in particular, could be extremely powerful and is a workable version of an idea that’s been floating around for a while in abundance circles.

But if the Planning and Infrastructure Act’s reforms to JR are working, why is Reeves looking to go further?

Let me explain. There are two major problems with JR.

First, there’s the obvious and relatively recent problem of legally sound infrastructure projects being delayed by legal challenges that are extremely unlikely to succeed. That’s a real problem – and it’s certainly been exacerbated by international treaties like Aarhus which mean unsuccessful claimants are not liable for the full legal costs they impose on the other party - but it isn’t the main problem. Rather, it is the measurable, or visible, problem. The cost of delay in time and money is easy to track.

There’s a second bigger, but harder to measure, problem with JR. It is how the threat of a successful JR (most attempts fail, but some succeed) has a chilling effect. Planning and environmental law is extremely complicated. There is, and it’s debatable how avoidable this is, enormous scope for interpretation. What is or isn’t an adverse effect? What counts as a sufficient level of consultation? What level of evidence is needed to rule out a potential environmental impact?

If a JR attempt succeeds and planning permission is quashed, it can, at best, massively delay a project and, at worst, kill it altogether. Infrastructure builders, whether or not they’re private or state, will rationally go to great lengths to avoid being JR’d. Caution is embedded throughout the process. Every single time there’s a grey area, lawyers will push developers to the more expensive (but legally robust) solution.

This is the real reason why EDF spends £700m protecting fish at Hinkley Point C, why HS2 spent £100m on a bat shed, and why National Highways’ planning application for the Lower Thames Crossing was over 350,000 pages long (and cost £350m).

This is inherently hard to measure. First, because it is difficult, even for the brightest lawyers, to work out what is legally required and what is goldplating. Second, because we typically don’t get to see the options developers rule out due to legal risk.

It is the reason why environmental impact assessments get longer and longer over time. It is also why the time it takes ministers to decide whether or not to approve projects has grown over time. When every single line is set to be scrutinised by litigious campaigners, a simple ‘yes’ isn’t sufficient. Every element of the Secretary of State’s reasoning must be set out in pain-staking detail, guarding against hundreds of potential objections.

The hope is that these reforms push against that culture of extreme caution. In theory, the ability for Parliament to confirm the project in a straightforward vote should put an end to the ‘belt-and-braces’ approach and instead allow for developers to argue the case for their project on the merits.

There is a trade-off. It makes planning decisions more political. Some developers might not like that risk. At the moment, it seems unlikely that Parliament would overrule a Secretary of State and block a project. In the future, majorities might be thinner (or non-existent) and concentrated opposition to specific infrastructure projects (say pylons in East Anglia) might lead to Parliament voting down permission.

Still, it’s a trade-off worth having for two reasons.

First, planning is already politicised. I find it hard to believe that the decision to block the Aquind Interconnector had nothing to do with the fact that it made landfall in Penny Mordaunt’s Portsmouth North seat. (JR in theory came to the rescue – overturning the decision – but the project appears to have stalled.)

Second, it isolates the consequences of controversial infrastructure decisions. When locals want to block a project, the best course of action would be to make a persuasive case aimed at a majority of parliament. Under the status quo, locals fighting development often end up setting new legal precedents. Precedents that are hard to reverse and bind not just a gas well in Surrey, but renewable and nuclear projects across the country.

The refreshing thing about Reeves’ plan is that Parliament will once again be accountable for decision-making. MPs might get it wrong from time-to-time (they will), but at least they won’t be able to hide behind processes and or shift the blame to unelected quangocrats. Crucially, if Parliament chooses to block vital infrastructure, voters will be free to punish them at the next election.