Judicial review challenges to selected energy and infrastructure projects are set to be restricted under a proposed change in UK government policy. The measure is aimed at limiting the scope for legal challenge to projects identified as key to delivery. It raises a direct issue for the way in which public law challenge can be used against nationally significant schemes.
Judicial review is the primary mechanism for challenging the lawfulness of decisions taken by public bodies. In the context of energy and infrastructure development, it can be used to test whether a decision-maker has acted within legal powers and followed a lawful process. A restriction on such challenges would narrow the routes by which affected parties may seek to disrupt or delay those projects.
The practical effect of any limitation depends on how it is framed, but the legal direction is clear: the ability to challenge decisions connected with key projects would be reduced. That would make the decision-making process more resistant to court challenge and would place greater emphasis on the original administrative and planning stages. It would also increase the importance of getting the legal basis for a project right at the outset, because fewer opportunities would remain to contest the decision later.
For parties with an interest in such projects, the central legal point is that judicial review is likely to become a more limited remedy where the government identifies a project as falling within the protected category. That would affect both the timing and the availability of challenges, and it would increase the risk that alleged defects in the decision-making process cannot be pursued through the courts in the same way as before. In legal terms, the balance would shift further towards delivery certainty and away from post-decision scrutiny.
The proposed change therefore represents a material reduction in litigation risk for designated energy and infrastructure projects, but a corresponding reduction in the ability to use judicial review as a check on public law error. The legal consequence is that challenge rights may be curtailed where they have traditionally provided an important avenue of scrutiny.
Disclaimer: This post is for general information only and does not constitute legal advice. Specific advice should be sought for your particular circumstances.
Source: https://www.pinsentmasons.com