Judicial review appeal restrictions questioned

The Law Society of England and Wales has called for more evidence to be gathered before restrictions are placed on judicial review appeals involving Nationally Significant Infrastructure Projects (NSIPs). The Planning and Infrastructure Bill, which would restrict appeals relating to NSIP judicial reviews, had its second reading in the House of Commons today (Monday, 24 March).

“We appreciate the need for critical infrastructure projects to deliver growth. However, we are concerned that this restriction on judicial review appeals could prevent legitimate cases from being heard,” said Law Society president Richard Atkinson. “Judicial review in the context of NSIPs does not consider the merits of the proposed infrastructure project, only whether the Development Consent Order has been made lawfully. While pursuing certainty through ensuring swift administration of justice is worthwhile, any reforms must balance efficiency with maintaining access to justice. Stopping people from seeking permission to appeal to the Court of Appeal where an NSIP appeal has initially been deemed ‘totally without merit’ may seem superficially attractive, but we do not currently know how many such NSIP claims were later successful. If there are claims where this is the case, then this measure could exclude valid cases and deny access to justice by preventing the decision being reconsidered.”

The Bill also proposes removing the paper permission for NSIP judicial reviews.

“The experience of our members is that making permission decisions on the papers saves costs and resources for both parties and the courts,” added Richard Atkinson. “In contrast, the preparation required for an oral hearing can be extensive, and there are additional costs to attending a hearing which would be borne by both parties. Streamlining judicial review on permission decisions should be evidence led, particularly when considering the importance and impact of NSIPs. The government should therefore analyse and publish further evidence on the number of cases initially deemed totally without merit which were then later successful. Officials should also look at the cost implications of removing the paper permission stage to allow assessment of the impact on access to justice.”