The Conservative Party published “The Wolfson Report” formally entitled “ADVICE TO THE LEADER OF THE CONSERVATIVE PARTY RE ECHR” (“the Report”) and written by Lord David Wolfson KC, the Shadow Attorney General and the Rt. Hon. Helen Grant, OBE, MP Shadow Solicitor General.

Despite the markings on every page of the Report which say “PRIVATE & CONFIDENTIAL / SUBJECT TO LEGAL PROFESSIONAL PRIVILEGE” it is now there for all to read.

The Report sets 5 tests “with a view to enabling you, as Leader, together with the Shadow Cabinet, to decide whether Conservative Party policy should be that the UK remain a signatory to, or should withdraw from, the ECHR” (see para. 2). This being an Aarhus Convention blog the test that is of interest is “The Prosperity Test” which considers “whether the ECHR is a significant constraint on infrastructure projects”. SPOLIER ALERT, the answer is “no”.

In a 185-page opinion the Aarhus Convention gets a mention in Part V of the Report that considers the “Prosperity Test”. The question posed by this test is “Can we prevent courts from treating action on climate change as a human right, and stop what are often perceived to be endless legal challenges to infrastructure projects?”

The Executive Summary for this section on “Prosperity” is worth quoting in full:

“EXECUTIVE SUMMARY

194. The Prosperity Test section raises important issues and is a significant example of the damaging effects of lawfare in the UK. Judicial review, and defensive decision-making predicated on fear of judicial review, have hobbled the development of essential infrastructure over many decades. Sam Richards of Britain Remade has pointed out that we have not built a reservoir in over 30 years, a nuclear power station in 30 years and offshore wind farms take 13 years to get going, despite only taking two years to build. A third runway at Heathrow Airport continues to be “one-part infrastructure, two-part national soap opera”.

195. Vital road projects are dogged by legal challenges brought by “anti-roads campaigner” dubbed “one of Britain’s costliest Nimbys”, and the huge HS2 rail project has been so protracted that the previous Prime Minister eventually saw no option but to cancel the northern leg of the line in 2023. One factor in that decision may have been the now infamous bat tunnel which cost in excess of £100m to institute contested mitigation measures specifically disowned by Natural England. The Lower Thames Crossing, for example, was originally expected to cost £5.2bn but that has ballooned to £9bn. Norway built an equivalent project for £109m, contrasting unfavourably with the £267m spent on the planning stage alone of the Lower Thames project. An “acoustic fish deterrent” is proposed at Hinkley Point C. Proposed wind and solar projects require significant new investment in pylons and high-voltage overhead lines, ominously described by campaigners as a “desecration” of the landscape.

196. This section therefore raises highly contested policy issues that are significant for the future growth prospects of the UK. Crucially for the purposes of this advice, however, the impact of the ECHR and the HRA on these issues is more peripheral than for other sections. Major infrastructure projects and climate change questions rarely give rise to directly actionable claims by individuals on human rights grounds. This section can therefore deal with many of the core issues more shortly than would be necessary if the focus of this advice were to be on lawfare issues more broadly.

197. This section first addresses a direct challenge to the hitherto orthodox view that climate change and human rights are separate domains, which is the case of Verein Klimaseniorinnen Schweiz and Others v Switzerland (“Klimaseniorinnen’) [* See blogs 12 and 30]. The ECtHR held in that case that Switzerland was liable for its failure to take sufficient positive regulatory steps to mitigate the “current and future threat to the enjoyment of human rights” caused by climate change. It then briefly addresses the effect on domestic litigation of the Paris Agreement, noting the absence of human rights issues raised by that treaty, before considering other international instruments and the recent Environment Act 2021. Finally, it addresses the indirect effect of the HRA on judicial review proceedings to examine whether ECHR withdrawal would have a material impact on the problem of excessive judicial review of infrastructure projects, concluding that it is unlikely, subject to any potential ongoing ripple effects of the Klimaseniorinnen decision.”

Following a whistle stop tour of recent environmental law challenges the conclusion that the Report comes to is that “The continuance of the HRA and ongoing membership of the ECHR is of less visible salience to the ‘Prosperity Test’ (as framed) than some of the other tests addressed in this advice” (see para. 241), but that “this may understate the broader significance of ECHR rights to the jurisdiction of Government and thus ossification of public policy” (ibid) and that “given the strong feeling on this issue, it is entirely plausible that the developments in Klimaseniorinnen (both its conclusion on standing, and bringing climate change within the ambit of the ECHR) could affect substantial swathes of government policy”. It is then said that “The wider constraints on any future government attempting to improve the prosperity of the UK through reforming and streamlining domestic planning and other significant constraints are serious and long term. ECHR withdrawal would be important in this context but is not the only consideration; it might be a necessary part of the solution, but much is needed besides.”

On route to this conclusion the Aarhus Convention gets a (dis)honourable mention.

At para. 221 the Aarhus costs rules are set out and it is said at para. 222 that “Protection on costs is obviously of critical importance for applicants considering bringing judicial review claims against government decisions”.

This kicks off a discussion on HM Treasury & Anor v Global Feedback Limited [2025] EWCA Civ 624: see blog 59.

The Report is supportive of the Court of Appeal construing the term “relating to the environment” “narrowly” (ibid) in that case but then says oddly “but the case is notable because it does not mention the ECHR or the HRA at any point and yet the freedom of action for ministers and others would still appear to be at significant litigation risk. This case is currently being appealed to the UKSC.”

Also, along the way the Environment Act 2021 is targeted with the Report looking at whether it can be repealed.

It is also worth quoting the following section that look at what the remedies might be (emphasis added):

“236. Many of the serious problems caused by judicial review of domestic infrastructure are not directly impacted by membership of the ECHR but are affected by a culture of excessive deference to ever increasing and complex legal regulation both domestic and international.

237. Recent moves to achieve ’dynamic alignment’ on energy policy more closely with the EU may also become increasingly relevant. Previous Governments have attempted to mitigate some of the effects of delays in planning permission decisions in domestic law. One important example was the creation of Nationally Significant Infrastructure Projects (“NSIPs”) through the Planning Act 2008. This sought to streamline decision making by centralising important decisions to the Secretary of State to make the final decision. This attempted solution has not worked, but it is not obvious how continued membership or exit from the ECHR would assist in improving the status quo.

238. More recent reform proposals follow an influential report by Lord Banner, an expert in planning and judicial review. He recommended that the current three stages of judicial review applications in relation NSIPs should be reduced by one [see blog 47]. Applicants currently have the right to bring an application on the papers, with the right to appeal to an oral hearing and from there an appeal to the Court of Appeal. Lord Banner suggested that the paper application stage be removed.

239. The stated aim of reducing the three bites of the cherry to two is apparently to weed out unmeritorious claims. Lord Banner proposed that the target timescale for the oral hearing in the High Court should be within four weeks of the deadline for the Defendant and that the target timescale for the Court of Appeal’s determination of an application for permission to appeal against the refusal of permission to apply for judicial review should also be four weeks. Lord Banner rightly pointed out that there “is no established constitutional right to multiple bites of the cherry at the permission stage” and gave the example of s 289 of the Town and Country Planning Act 1990.

240. Another proposed measure is the creation of an Environmental Fund into which developers could contribute in lieu of specific mitigation measures in each application. The argument for a holistic national programme of environmental protection and development is compelling and could see a more balanced approach than imposing specific requirements each time. These sensible proposals have received widespread support but there is a risk that these and other measures are rearranging deckchairs on the Titanic. The proposals are small, important but limited changes that do not really presage a sea-change in the regulatory environment that could mitigate the decades of neglect and delays in critical national infrastructure projects essential for the future prosperity of the country. Again, the ECHR and the HRA are of important but limited relevance to these issues; attempts to address the broader concerns in relation to domestic planning policy raise issues that go beyond the ECHR and the HRA.”

Attacking the European Convention in the context of the issues we face around the delivery of infrastructure seems to me like tilting at a windmill.

One of the biggest problems with the delivery of major infrastructure in the UK is, wait for it, elected politicians. The delivery of major infrastructure is in the modern world always going to take a long time. It costs a lot of money. There needs to be long-term and unmalleable support for such development. Instead, we have successive Governments supporting and axing the big schemes: Heathrow expansion, HS2.

For a hilarious video on what went wrong with HS2 see “The UK Buys HS2 – Larry and Paul” at https://www.youtube.com/watch?v=-GQHXEetllo

I listened to an amazing podcast recently https://www.bbc.co.uk/programmes/m001gjcm. This discusses the work of the engineer Sir Joseph Bazalgette who was given the task in the 1850s of building huge new sewers in London to intercept the waste, a vast network, which changed the look of London (it created the Embankment) and helped ensure there were no further cholera outbreaks from contaminated water. What I found interesting was: (i) the Bill for the works passed through Parliament in 10 days(!); (ii) the success of the project owed much to the then PM Benjamin Disraeli who threw himself behind it despite knowing that by the time it was complete, and its benefits felt, he would no longer be PM – few (no?) modern politicians would throw their political weight behind a project that would never deliver them any electoral benefit just because it was for the greater good in the long term; and (iii) there was hardly any opposition at all to the scheme. That World is long gone – the Thames Tideway DCO project is good evidence of that. We now live in a World where: (i) large infrastructure project consenting is very complex and will inevitably take many years – nothing now will change this; (ii) elected politicians are destructively short-termist –  (as I said in my paper – https://www.linkedin.com/posts/james-maurici-k-c-29b16524_10-reasons-why-labour-will-fail-to-build-activity-7267946556090105856-J4cw/ – “[a]s is becoming very clear in our troubled World, democracies are failing to even try and do what is necessary in the medium and longer term best interest and instead act only in the short term interest … The focus of politicians rarely extends beyond the next election cycle or, all too often, the next 24 hour news cycle.”); and (iii) the World is full to the brim of NIMBYs, BANANAs (“build absolutely nothing anywhere near anything”); NIABYs (“not in anyone’s backyard”), NOTEs (“Not over there either”) and in one case “NIMBAs” (“not in my boating area”): see https://www.gov.wales/sites/default/files/publications/2021-12/morlais-demonstration-zone-inspectors-report_0.pdf at para. 311.  It doesn’t matter how many windmills the politicians seek to destroy none of these facts will change …

The full Report can be found here: https://www.conservatives.com/wolfson-final-report.

This blog post was written by James Maurici KC.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; ACCC/C/2014/100 and 101; ACCC/C/2017/150. He is currently acting on the Free Trade Agreement Communication ACCC/C/2022/194. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.