Project Nutcracker: Can Parliament rubber-stamp a DCO to make it legally unchallengeable?

In May this year, the Government published a Policy Paper (Getting Britain Building: Reforming Judicial Review for Infrastructure) with two new ideas for stopping legal challenges from delaying major infrastructure projects: [here].

I have written a previous Nutcracker on the Government’s ‘challenge window’ idea: [here].

In this Nutcracker, I examine the other proposal – the suggestion that Parliament could vote to endorse some development consent orders (DCO), so that they become judicial review proof. 

The big sell: Parliamentary sovereignty

There are various incarnations of the idea that Parliament might somehow be used to prevent our most important projects from being legally challenged. The ‘sell’ is alluringly simple. Unlike ordinary ‘public law decisions’ (planning decisions made by councils, inspectors or Ministers, including DCOs), Acts of Parliament cannot be legally challenged through the courts (generally). This is part of the constitutional concept of Parliamentary sovereignty.

In some cases, UK infrastructure is already consented by Acts of Parliament, known as Hybrid Bills (HS2 and Crossrail, for example). Neither was a quick process. The HS2 Bill took 3 years and 3 months to go through Parliament, and the Crossrail Bill took 3 years and 5 months. The majority of that time was taken up with extensive select committee scrutiny, and petitions from affected individuals, local authorities and businesses.

The HS2 and Crossrail Acts themselves, when finally enacted, were not legally challengeable, and no doubt if they had been granted using DCOs, those DCOs would have been challenged. 

So, the thinking goes, if we could find a way for infrastructure projects to benefit from Parliamentary sovereignty, but without the lengthy process that HS2 and Crossrail went through, we will have found a way to speed up the delivery of UK infrastructure. I explain in this article why, unfortunately, no such solution exists. 

What is the proposal?

The Government’s proposal, as set out in the Policy Paper works like this:

• Step 1: A developer who wants to use this route would opt-in, presumably by making some sort of application to the Secretary of State for Energy and Net Zero (the route is proposed to be open to energy projects only).
• Step 2: The Secretary of State “determines that the project should be designated as of critical national importance” (or presumably determines that it should not be).
• Step 3: The “House of Commons votes to confirm that designation” (or presumably votes not to).
• Step 4: The normal process for examining a DCO is then carried out. This comprises: (i) applying to the Planning Inspectorate (PINS) with all the usual documents; (ii) a circa 4 month wait while Inspectors are appointed and the application is advertised and written objections are made; (iii) a 6 month examination of issues and objections; (iv) PINS has 3 months to write up a report and recommendation and send it to the Secretary of State; and (v) the Secretary of State has a further 3 months to read the report and make a decision to grant or refuse the DCO. This is currently the end of the process – save for any judicial review filed within 6 weeks. But under the Policy Paper proposal there would be a further step…..
• Step 5: The ‘final decision’ of the Secretary of State is put to the House of Commons for another vote. If this second vote approves the DCO then that ‘rubber stamped’ DCO cannot (the Policy Paper hopes) be legally challenged by way of judicial review “other than on human rights grounds.”

Key points to note, as discussed below, are that the process does not include any select committee scrutiny by MPs or Lords, or any vote in the House of Lords, and does not produce an Act at all. Rather, according to the Policy Paper, “the DCO would be afforded a distinct statutory status” which would be specified in the under-pinning legislation. That status would be “akin to an Act of Parliament” the Policy Paper suggests.

Something ‘akin to an Act’ won’t benefit from sovereignty

The main legal flaw is that unless something is an actual Act of Parliament (having gone through a meaningful Parliamentary process) it is unlikely to be considered by the courts to benefit from Parliamentary sovereignty. The courts are likely to consider the sort of rubber-stamping process envisaged a sham. As such courts would be likely to hear a judicial review brought in relation to a rubber-stamped DCO regardless of anything any enabling legislation setting up this new regime might say. See commentary in HS2 Action Alliance case [2014] (paragraphs 82 to 92) on the need for a substantive legislative process and not mere ratification of an administrative decision. 

The process proposed in the Policy Paper cuts out a number of stages that Hybrid Bills (like Crossrail and HS2) go through. In particular, it does not propose a select committee stage in the Commons, and it does not propose any scrutiny or voting by the House of Lords. Parliamentary convention is that scrutiny by committees of MPs is applied before Bills are put to a vote. Where those Bills involve development proposals (private interests, as well as public interests ie ‘hybrid’ elements), the committee stage involves landowners and other objectors being able to ‘petition’ against the proposal in front of groups of MPs. The MPs can require changes to be made to the Bill or can give commitments to the petitioners (kept on a register). This lengthy process was credited with adding to HS2’s cost, as MPs had a tendency to give commitments or make changes to the Bill to address the concerns raised by petitioners without much awareness of the cost impacts. It is a process without a fixed deadline and one with wide discretion given to the committees of MPs. 

If such scrutiny were added to the 5 steps, it would be unlikely to save time compared with going through a judicial review. In addition, in order to be legally meaningful (and therefore treated by the courts as protected from legal challenges) you would almost certainly have to allow the committees to make changes to the draft DCO and add commitments to deal with petitioners issues. The fact that the DCO had already been subject to this type of process through a DCO examination wouldn’t mean you could skip this – otherwise the petitioning process would be a nonsense. 

The myth of ‘provisional orders’ as a precedent

The same legal problem would arise if we sought to achieve judicial review protection via an actual Act (as opposed to something simply ‘akin’ to an Act). I am thinking here of ‘one-line Acts’ which it has sometimes been suggested could deem Parliament to have consented a project that had in reality simply been subject to a DCO process. 

It has occasionally been suggested that the historic process of Parliament confirming ‘provisional orders’ might be a precedent for this. The provisional orders procedure was commonplace in the early part of the 20^th century, but has not been used for decades. Essentially, the Secretary of State makes a DCO-style Order, and if anyone challenges it, a public bill would be introduced to Parliament, which could skip some of the ordinary legislative process. See the version of this process that was provided for by the Private Legislation Procedure (Scotland) Act 1936. Such procedures would, however, still require a joint committee petitioning process. Furthermore, Provisional Order Confirmation Bills are explicitly excluded from the Parliament Act, so that the consent of the House of Lords would be essential for each confirmatory bill approving a provisional order. There is also some doubt as to whether this sort of process would be compliant with modern obligations like the Aarhus convention.

The essential problem is that unless a one-line confirmatory Act was put through a substantive Parliamentary process it is unlikely to be treated by the courts as subject to the protection of Parliamentary sovereignty.

Accidental creation of a new point of legal challenge 

Even if we forget the fundamental constitutional problems outlined above, the proposed regime would create a new opportunity for an objector to bring a legal challenge. Any ‘public law’ decision is capable of being challenged by way of judicial review. This would include the Secretary of State’s decision to designate a particular project as of ‘critical national importance’. In other words, the gateway to this new route offers objectors an opportunity to bring a challenge. It might be hard to win such a challenge. No doubt Government could draft the criteria loosely, to maximise the Secretary of State’s discretion and therefore make it hard for a challenger to prove the high bar of ‘irrationality.’ Government could also make procedural requirements for an application as simple as possible, to minimise a challenge on procedural grounds. But challenges could still be brought and would need to be processed by the courts in the usual way. Politically, it would be hard to put such a designation to an initial vote in the House of Commons while it was under challenge.

Bringing Parliamentary politics into decision-making

Many energy developers would be worried by the prospect of putting their projects to a vote in the House of Commons (twice). Politics as we know is extremely volatile these days. Snap elections can be called. The make-up of Parliament could easily be very different between the first vote and the second vote (given there could be a couple of years between them). Even with the same MPs in place for vote 1 and vote 2, there is the chance that for some reason the MPs turn against the project or want to make a political point by voting against it at vote 2. Most developers would prefer to place their trust in a single Secretary of State to decide their project (against the backdrop of national policy statements), as currently.

What happens if the House of Commons votes against? 

Linked to the above, it’s unclear what happens if the House of Commons votes are lost. Presumably if vote 1 is lost then the developer just goes through the ordinary DCO process as currently. If vote 1 is won but vote 2 is lost (after the Secretary of State has nevertheless given his/her ‘final decision’), what then? Perhaps the legislative regime could be drafted so that the Secretary of State can go ahead and make the DCO anyway, in the normal way. The DCO just wouldn’t benefit from the intended judicial review protection. That would be politically awkward in practice. It would be tough for a Secretary of State to grant a DCO after having heard his/her colleagues debate it in the House and vote against it.

Very time-consuming for MPs 

Any version of this process that does the job intended will be time consuming for MPs, especially if it is used for multiple critical projects concurrently. There is an irony here, as this was the very reason that the Transport and Works Act regime was put in place in 1992 (the predecessor in large part to the Planning Act 2008’s DCO regime) – to save MPs’ time on private and Hybrid Bills for infrastructure. Planning is important but not at the expense of the many other important things we need our MPs to do. 

Human rights cases could still be brought

The Policy Paper states that there would need to be a carve out for human rights challenges. It is not clear what exactly is intended by this carve out and what its scope would be. However, most DCOs include compulsory purchase powers. That brings into play the protection of property (Article 1 Protocol 1) and private life (Article 8) under the European Convention on Human Rights (“ECHR”). Article 6 of the ECHR guarantees the right to a fair trial. Without going into detail on the complexities of the Alconbury case of 2001, the judgement in that case placed great weight on the availability of judicial review as the means of ensuring that article 6 ECHR was complied with. If judicial review were to be excluded or heavily circumscribed via the sort of rubber-stamping process envisaged, this is unlikely to comply with the ECHR. These concerns are presumably the origin of the Government’s carve-out.

However, if we accept that judicial review on human rights grounds could not be excluded, then we would expect to see objectors simply framing their challenges in human rights terms. There would still be ample grounds for creative objectors and their lawyers to pursue. 

Even if the 5-steps worked, how much time would it save? 

For the sake of argument, let’s imagine that somehow the 5-step process in the Policy Paper actually works to provide Parliamentary sovereignty (contrary to my view above). How much time would it save, compared to defending a judicial review? It is still only the minority of DCO projects that are legally challenged. It would only be those energy projects who consider themselves almost certain to be judicially reviewed who would therefore, we assume, consider opting into this Parliamentary rubber-stamping process. Would they be tempted by the likely time-saving?

Let’s assume (best case) that the new regime allows a developer to go through steps 1 to 3 in parallel to preparing a DCO application for submission to PINS (ie that the full detail comprised in the DCO application isn’t necessary for the application to the Secretary of State or vote 1). If so, the front end of the new process won’t add time to the developer’s programme. The back end would, however, inevitably add time to the ordinary DCO process, because the DCO wouldn’t be brought before Parliament until it had made its way through the DCO regime and a ‘final determination’ made by the Secretary of State. Parliamentary time would need to be found for the debate and vote. This may not be easy. Governments with active legislative programmes already struggle to find Parliamentary time for all the Bills they want to put through. Finding time for one project in a session could be difficult, nevermind a number of energy projects. 

Despite best intentions, Parliamentary timetables can slip, things get bumped or fall into recess periods. These are quite long: mid-December to early January; mid-September to mid-October, mid-July to early-September, and a few weeks at the end of May. In principle, perhaps you could schedule a debate and vote for a project within a few months of the Secretary of State’s ‘final decision’ but in practice who knows. The time-saving against defending a judicial review under the Government’s reformed procedures certainly wouldn’t necessarily be huge. 

In any event, to repeat, this is rather academic as I don’t believe the 5-step process envisaged would be effective at delivering a judicial review proof DCO in any case.

Big projects get multiple judicial reviews, not just to the DCO

Most people who talk about trying to find ways to stop infrastructure being delayed by judicial reviews are working on the false premise that it’s just the initial grant of consent that gets judicially reviewed. However, for the biggest projects, developers find themselves fighting numerous judicial reviews of different ‘public law decisions’ throughout the life of the project. 

Sizewell C, for example, has dealt with legal challenges to the following, in addition to the grant of the DCO itself: (i) an advanced works Town and Country Planning Act permission: (ii) the discharge of a DCO requirement (condition) (iii) compliance with the Office of Nuclear Regulation’s grant of a nuclear site licence; and (iv) the Secretary of State's refusal to revoke or unilaterally amend the DCO upon request by an objector. 

A rubber-stamping process of the type proposed would only deal with a legal challenge to the DCO itself, not all possible judicial reviews of other project-related decisions. HS2 is a case in point. While the Act itself wasn’t challenged, there have been multiple legal challenges of related consents for the project, including the approval of detailed plans relating to implementation of the project under the terms of the Act. The Government’s proposals, even if it worked, would therefore not be a complete cure - particularly for the biggest projects that it is primarily aimed at, as these are the ones which objector groups continue to target throughout construction and beyond.

Conclusion on Parliamentary rubber-stamping

There are other versions of the “Big Sell” based around use of Parliamentary sovereignty to avoid judicial reviews. However, the problem with all of them is that there is no way to meaningfully scrutinise and vote through a Bill (or something ‘akin’ to a Bill) in a way that protects it from judicial review, without doing some or all of the following: (i) adding as much time to a developer’s programme as dealing with a judicial review might; (ii) adding political risk and timing uncertainty; and/or (iii) adding a new public law decision for objectors to legally challenge (the Secretary of State’s decision to allow a project to use the process). You could look at reforming and speed up the petitioning and select committee process, but the chance of that getting the required buy-in from Parliament is highly uncertain. In any event, MPs and Lords would always need to retain a high degree of discretion over how the process is run and how long it takes. Besides, Parliamentary sovereignty is powerless to stop judicial reviews being brought by objector groups in relation to the many other public law consents required for a major project.   

Postscript

It is no accident that we cannot find a way to stop legal challenges to planning consents, or any other public law decisions. It is not due to a lack of legal creativity. It is simply the flipside of having a country with the separation of powers, and an independent judiciary tasked with deciding if the law as enacted by Parliament has been followed. The law is only the law if it is capable of being enforced. Without this, it is just a rule of thumb about how things will generally be done by those in charge. In countries where there is no ability to challenge public decisions, that is effectively all the ‘law’ is.

The fact that the UK is seen to robustly uphold the rule of law has generally served us well, including through engendering investor confidence. It is infuriating that objector groups use legal challenges to try to delay projects, particularly given that DCOs go through a long and thorough process before being granted. However, if you could magically judicial review proof our most important DCOs via a simple vote in the House of Commons, would DCO applications still be properly assessed and scrutinised by the Planning Inspectorate and the Secretary of State in accordance with UK law? Maybe, but it would no longer matter.  The Secretary of State could in theory grant a DCO without the developer having submitted an environmental impact assessment which complied with the basic legal requirements, or without any environmental assessment at all. It would no longer matter if a procedurally fair process had been followed. It wouldn’t matter if immaterial factors were taken into account, or material factors ignored in making the decision. No challenges could be brought pointing these things out. How long would the benefits of our current system last if there was no longer any legal accountability, and we were simply reliant on the preferred approach of those in charge at the time? And how long would public trust last if the law was seen to apply to our less important projects only, with others deemed too important to have to comply with the law? 

The Government has already made some useful changes to the procedures and target timescales for courts to hear judicial reviews. We have seen the benefits of these in the swifter timescales for the Stonestreet Green, Luton airport and Gatwick judicial reviews. However, trying to find ways to stop judicial reviews from being brought against infrastructure projects remains a hiding to nothing. There simply is no way to avoid throwing the baby out with the bathwater when it comes to the rule of law and judicial review. 

Government indemnities therefore remain the most effective and realistic measure to mitigate the impacts of judicial reviews on project delivery in my view (for reasons articulated in the Conclusion of my Challenge Window article [here]).