Government should approach reducing risk of judicial review with care

The government has put infrastructure at the heart of its ambitions for growth. The Plan for Change set a goal of “fast-tacking planning decisions on at least 150 major economic infrastructure projects” ¹⁸ Prime Minister’s Office, 10 Downing Street, Plan for Change: Milestones for mission-led government, CP 1210, The Stationery Office, 2024, https://assets.publishing.service.gov.uk/media/6751af4719e0c816d18d1df3/Plan_for_Change.pdf  while the infrastructure strategy sets out £725bn in government spending over the next decade. ¹⁹ HM Treasury, National Infrastructure and Service Transformation Authority, UK Infrastructure: a 10 year strategy, CP 1344, The Stationery Office, 2025, https://www.gov.uk/government/publications/uk-infrastructure-a-10-year-strategy  However, the government has found itself frequently frustrated by legal delays.

From the government’s perspective, one stumbling block is the threat of judicial review – a legal process where opponents can challenge government decisions. ²⁰ S. Guy, ‘The government’s plan to reform infrastructure judicial review’, UK Constitutional Law Association, 28 January 2025, https://ukconstitutionallaw.org/2025/01/28/sam-guy-the-governments-plan-to-reform-infrastructure-judicial-review/  While judicial review only rarely results in planning decisions being overturned, the process can introduce major costs and delays to projects. The Planning and Infrastructure Act 2025 has already reduced how many times opponents to major infrastructure projects can make legal challenges from three to two (and only once for those judged ‘totally without merit’), but the government wants to go further.

The government is turning to parliament to fast-track its infrastructure plans

A brief policy note, published on 20 May, proposes a quietly radical solution – a new “parliamentary authorisation mechanism” which would be bolted on to the existing planning procedure to protect decisions against judicial review for clean energy projects deemed to be of critical national importance. ²¹ HM Treasury, Getting Britain building: reforming judicial review for infrastructure, 20 May 2026, https://www.gov.uk/government/publications/getting-britain-building-reforming-judicial-review-for-infrastructure  There is precedent for parliament playing a role in infrastructure through the hybrid bill procedure. Historically, provisional order confirmation bills were also used to legislate for infrastructure, this is now a largely defunct process where a department issued a provisional order to be introduced to parliament as a confirmation bill which, if unopposed, would pass through parliament and gain royal assent.

Parliament’s role in the government’s new proposals is not, as with hybrid bills, to act as the primary consenting authority. Instead, it effectively extracts one of the key benefits of the hybrid bill process, greater protection from judicial review, ²² J. Pannell and P. McAlary, Hybrid bills: Parliament’s role in delivering major infrastructure, Institute for Government, 24 July 2025, p. 21, https://www.instituteforgovernment.org.uk/publication/hybrid-bill-parliaments-role-major-infrastructure  by virtue of being primary legislation, without the baggage attached to the more drawn-out legislative process that accompanies hybrid bills. Parliament will effectively be asked to rubber stamp projects consented via the normal route.

Proposals to limit judicial review come with tricky implications

The government is clear about what it wants from these reforms – extra armour against judicial review. Alongside the parliamentary authorisation mechanism, the proposals include a ‘challenge window’ for other forms of nationally significant infrastructure (like transport), designed to limit opportunities for judicial review.

Given commitments to clean energy, and geopolitical challenges posed to energy resilience, there are good reasons for doing more to secure critical infrastructure against delays. But while these proposals could provide an effective route to rescue critical projects from the quagmire of judicial review, these reforms will take time to develop and will not be straightforward.

The core trade-off is between sufficient scrutiny, holding the government accountable for planning decisions, and a more streamlined, faster, planning process. Judicial review exists for a reason and trying to close off the legal challenge route without implementing another form of scrutiny as a counterbalance will face opposition from several quarters.

It is not yet clear what the “distinct statutory status specified in the underpinning legislation, akin to an Act of Parliament” would look like. ²⁴ HM Treasury, Getting Britain building: reforming judicial review for infrastructure, 20 May 2026, https://www.gov.uk/government/publications/getting-britain-building-reforming-judicial-review-for-infrastructure  The proposals, while optional, indicate limited engagement with MPs, who will vote to confirm that a project is of ‘critical national importance’ and again at the end of the planning process. Given the government’s poor record on fostering relations with the backbenches, developing measures that may be seen to use, rather than engage with, MPs could spark backlash, especially if they are held responsible for controversial infrastructure decisions by constituents. And while the reforms may seem attractive when the government wields a huge majority, a more fragmented House of Commons could mean they lose much of their utility.

More significant are unintended consequences. While the government has committed to engaging with relevant interests, it needs to provide details on what these reforms could look like in practice and what will be done to safeguard scrutiny and accountability on projects incurring a substantial public cost that could have major impacts on peoples’ lives. Moreover, the government needs to clearly set out why these reforms provide a solution that is not available via existing procedure, like a reformed hybrid bill process.

A reformed hybrid bill process would be valuable

As it stands, the authorisation mechanism will be restricted to energy infrastructure. The hybrid bill process will remain an important tool for legislating for particularly complex or high-status projects like Crossrail (the Elizabeth line) or High Speed 2 (HS2).

The hybrid bill legislative process is (in)famously long and complex – the experience of getting the HS2 bills through parliament has created nervousness around utilising the procedure. The Institute has already developed recommendations that could be implemented with relative ease within the existing framework such as committing hybrid bills to joint committees, adopting a more robust approach to challenging objections and appointing an assessor of petitions to support the committee’s work. If implemented, these reforms would strengthen the process, reduce the time taken to get these bills through parliament and improve scrutiny.

The government may want a quick solution for its infrastructure frustrations. But introducing new processes for some projects, without reforming the hybrid-bill process, risks creating a more complex patchwork of planning processes.