Local authorities, HS2 and judicial reviews

Tom Collins looks at the Supreme Court's ruling in the HS2 case and considers recent developments in relation to the ability of councils to bring judicial review proceedings.

The campaigners who sought to de-rail the Government’s plans for HS2 have had their objections rejected by the Supreme Court. Does this mean they have reached the end of the line? And will the Government now see this victory as further ammunition for its proposed reforms to the judicial review process?

The controversial HS2 project, and subsequent judicial reviews, have brought to the fore the issues that arise when local councils and the Government clash. It raises questions as to how the judicial review process works and whether it is effective.

A claim brought by HS2 opponents, including local councils and protest groups, for a judicial review of the HS2 decision was dismissed in the High Court in March 2013 (albeit it had success on one ground). An appeal to the Court of Appeal was rejected in August 2013 and now the claims have been unanimously rejected by the Supreme Court.

At issue in the Supreme Court was the claim that the Government had failed to properly carry out a Strategic Environmental Assessment (SEA) and that the hybrid bill had breached the Environmental Impact Assessment Directive (EIA Directive). The Supreme Court was unanimous in its verdict that this was not the case and that a referral of any questions on EU law to the Court of Justice of the EU was not required.

This therefore appears to be the end of the line for the objectors, albeit it is reported that consideration is being given to bringing a complaint to the Aarhus Convention Compliance Committee and the European Commission. HS2 Limited says it remains confident that the Commission will find no merit in the claims. It is also reported that a further judicial review against the project on the issue of safeguarding directions has been brought but again the Government is defiant and says the claim will be robustly defended.

The Government will champion its success against the objectors. It is useful to consider this in tandem with the Ministry of Justice's proposed reforms to the judicial review procedure.

The Department for Transport had earlier reported that “It is unfortunate but inevitable that opponents of HS2 will do what ever they can to delay the Government’s plans, but the Government remains committed to delivering HS2 as quickly as possible”. Now that the Government has been successful HS2 Limited has said that “HS2 opponents have exhausted all options in the domestic courts on these challenges. Three times now they have failed in these challenges. Despite losing time and time again they continued with the fruitless challenge, wasting taxpayer’s money in each futile attempt to derail the project”. It further reports that the Government has spent approximately £600,000 in defending the challenges – costs which it will now take steps to recover.

The Government appears to have taken the view that the challenges were delaying tactics. Transport Minister Baroness Kramer said: “We welcome that the Supreme Court has unanimously rejected the appeal which addressed technical issues that had no bearing on the need for a new north-south railway”. So, will the Government’s proposed reforms prevent such challenges being brought again?

Judicial reviews are an essential tool for the public to challenge local or central government decisions, or for local government to challenge central government decisions, which are believed to be unlawful, irrational or irregular.

The Government’s initial proposed reforms to amend the judicial review procedures were viewed by some as no more than ‘tinkering around the edges’. Its stated aim was to ensure that “weak or hopeless cases are filtered out at an early stage so that genuine claims can proceed quickly and efficiently to a conclusion…[ensuring] that the right balance is struck between maintaining access to justice and the rule of law on the one hand, while reducing burdens on public services and removing any unnecessary obstacles to economic recovery on the other.” Whilst a proposal to allow claims without merit to be dismissed without the right to an oral hearing was sound; a proposal to bring in a fee of £215 to proceed with an oral hearing was not that radical and would do little to deter applicants from bringing claims.

The Government then launched a consultation on further reforms which closed in November 2013. This time it went further and upped its game on reform of the process.

For example, the Government wanted to address how the courts may deal with claims challenging minor procedural defects to decision making which would have made no difference to the final decision. Further, it proposed a new ‘planning chamber’ for challenges to major developments which would be heard only by expert judges under a streamlined procedure.

It appeared that some of the proposed reforms had been influenced directly by the HS2 judicial reviews. For example, take the proposal to consider the potential for further reform to restrict the ability of local authorities to challenge ‘nationally significant infrastructure projects’ with the aim of preventing challenges to projects which ‘are essential to drive national economic growth’.

Consider also the proposal to reform the laws on standing - that is who can bring a claim. The Government’s concern was that the approach to date was too wide allowing individuals or groups, without a direct interest, to mount challenges which may only be for reasons of publicity or to cause delay. The proposals for reform on these points were met with objection and criticism by many including the Citizen’s Advice Bureau and the Bar Council.

In fact the Government has since reported on its consultation and has concluded that these two proposed reforms will not be progressed. If the reforms on these points had gone ahead the impact would have been significant. Indeed, whilst the intention was to remove administrative burden on local authorities who face challenges to their own decision making, ironically, it would have curtailed their ability to challenge central government decisions.

In response to the consultation the Equality and Human Rights Commission said: “Judicial review is there to raise serious concerns about a public body's decision making, and no-one should face unnecessary barriers in bringing a genuine case. Systems are already in place to filter out weak cases, and there's no real evidence that these reforms are needed. The right to go to court is an important protection for all of us and any changes made to the administration of justice must preserve the basic rights of fair and equal access to the courts.”

It appears that the Government has to date taken on board some of these concerns. Ultimately there is a fine line between allowing the courts to give due consideration, and to test thoroughly, claims which are meritorious (even though they may not ultimately succeed) and, on the other hand, simply letting the courts consider any and all objection to government decision making irrespective of the potential merits of the claim. It is of course right and proper that if a party considers that there has been a failing of the executive that this should be properly tested before the courts. On the other hand with a need to act proportionately and to safeguard public funds the government considers that some action need be taken.

Each case will of course turn on its own facts. The HS2 judicial reviews were clearly not without some merit as they progressed to the Supreme Court. However, the Government clearly intends to take some action to reform the system and will no doubt be buoyed by its success in these claims. Although it has reigned in on some of its proposals the final position on reform remains unclear and the balance remains to be found in seeking to ensure the right to call the Government to account against the need to reduce administrative burdens.

Tom Collins is an associate at national law firm Weightmans.