Response to MoJ Call for Evidence: Judicial Review and Nationally Significant Infrastructure Projects (‘NSIP’) - January 2025
In a recent consultation, the Ministry of Justice called for views on the recommendations of the Independent Review of Legal Challenges to Nationally Significant Infrastructure Projects (‘NSIPs’) by Lord Banner KC. In our response, JUSTICE raised some wider constitutional and access to justice concerns relating to some of the proposals to limit the access to judicial review.
- The Importance of Judicial Review and Access to Justice
We fully agree and welcome the Government’s clear statement that judicial review is a constitutionally important mechanism to hold government accountable. We agree with the Government and the Banner Review that cost cap rules should not be amended, in light of the UK’s obligations under the Aarhus Convention, and that the standing test should not be restricted.
- Reducing the Number of Permission Attempts
The permission stage across judicial review works well. The Banner Review’s case for reforming the permission stage, down to two stages or a single stage, is not well-made. We oppose the removal of the paper permission stage on access to justice and cost-efficiency grounds. Removing the paper decision would also undermine the use of rolled-up hearings. We are strongly opposed to removing the ability to renew a permission decision to the Court of Appeal, as the evidence is that this remains an important safeguard. We also stress that reforming the permission stage in relation to NSIP judicial reviews could lead to calls for wider limitations on judicial review.
- Raising the Permission Threshold
JUSTICE disagrees that there is a case for raising the permission threshold for judicial review for NSIP claims to those which are ‘likely to succeed’. It is an important part of our constitutional settlement that meritorious claims of potential government illegality are permitted to proceed, even if not ultimately successful. Raising the threshold for permission will reduce the accountability of public bodies and, in turn, the quality of public bodies’ decision making.
JUSTICE are concerned that some of these proposals, such as reducing the number of permission attempts, would set a dangerous precedent for the future of judicial review, undermining the Government’s stated commitment to access for justice and the rule of law. In light of the Government’s announcement this week, we will continue to make the case that removing the paper permission stage would reduce access to judicial review and not be cost efficient for either claimant or defendant.