Judicial Review and Courts Bill

Lord Moylan Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Moylan (Con)]

My Lords, being still relatively new in your Lordships’ House, it seems impertinent of me to start by welcoming the noble Lord, Lord Hacking, to his place, but I do so heartily. I add only that, from the pictures hanging in the corridors, there are many precedents that men used to wear hats in the Chamber as well, so perhaps we should make it a universal ambition to restore that for everybody.

Obviously I am speaking in the company of many distinguished lawyers, and not being myself a lawyer, distinguished or otherwise, it is likely that I am going to go tramping off the narrow path that has been trodden so far. I intend to do that, because I propose to use my few minutes to talk about airports, about which I do know something. My complaint is, as noble Lords will hear, not that the Bill goes too far but that the Bill is far too narrow.

Let me start by reminding noble Lords that when the Roskill commission reported in 1971, recommending the siting of London’s third airport at Cublington in Oxfordshire, it took the Government of the day 30 months in total to reject the recommendation, adopt another plan altogether and legislate for that other plan through the Maplin Development Act. By contrast, the Airports Commission chaired by Sir Howard Davies reported in June 2015, recommending a third runway at Heathrow, and it took the Government three years, until June 2018, to prepare and bring forward the national policy statement for designation by Parliament. Part of the reason for that delay is no doubt that the Government, or their civil servants, were paying close attention to the book mentioned by the noble Baroness, Lady Whitaker, called The Judge Over Your Shoulder, with the mistitled subtitle A Guide to Good Decision Making.

In June 2018, Parliament designated the national policy statement. That did not give it the force of statute, but it did give it a statutory force. None the less, campaign groups then got together and brought judicial review proceedings, which were rolled up and heard by the High Court. By my recollection, 17 points of objection were made to the process followed by the Government. All of them were dismissed by the High Court. Nothing daunted, the campaigners headed off to the Court of Appeal. All 17 points were considered again. Of course, the objectors had to win only one point to gain their objective, and they did. The Court of Appeal stubbed its toe on the question of what the definition of “policy” was in the phrase “government policy”. The NPS was then suspended by the Court of Appeal until the Government redid their homework.

I will cut to the chase: that did not actually happen. Instead, the case proceeded to the Supreme Court, which, in December 2020, five and a half years after the Airports Commission had submitted its recommendation, reversed the Court of Appeal decision and effectively, as I understand it, rejected all the objections that had been made. That nearly brought the Government and Heathrow Airport to the point where they could then start to submit a development consent order for consideration by inspectors to be appointed.

The third runway is now moot in any event because of the pandemic, just as Maplin fell before a change of government and the massive hike in oil prices that occurred in the early 1970s. So neither of those is particularly a live case at the moment, and I am not here to argue Heathrow’s case. Far from it: I have spent 20 years campaigning against the expansion of Heathrow. My concern is broader than that. It is that the third runway was to be—and if it goes ahead, is to be—financed by private capital. The delay and uncertainty added by this lengthy, constantly shifting response in judicial review, have a real cost on the cost of capital, which we all have to pay. It has a chilling effect on foreign investment in UK infrastructure. This is not the vindication of citizens’ rights spoken of by certain noble Lords; this is the continuation of politics in the judicial forum. Different noble Lords will react differently to this. Some will see it as the law doing its job. I do not. I see it as a distortion of the balance of our constitution compared with 1971. I put this down as a challenge to those who have suggested so far in this debate that everything is more or less beyond improvement in the judicial review garden.