Putting the Brakes on Infrastructure? Judicial Review Challenges to HS2 and the Critique of ‘Litigant Power’

A growing critique regards judicial review as inhibiting infrastructure delivery on the basis of what I term ‘litigant power’, which may come to represent the dominant political critique of judicial review under the Labour administration. This differs from classic concerns of judicial power, focusing on how legal challenges by project opponents—notwithstanding their doctrinal outcome—can produce delay and embed a chilling overcaution among industry and policy makers. Having articulated the litigant power critique alongside judicial power, the article explores judicial review’s impacts on infrastructure delivery through a case study of the legal challenges to England’s High-Speed 2 railway project. I argue this litigation presents little evidence of judicial overreach, but in some ways supports litigant power concerns. Nevertheless, I suggest the litigant power critique risks oversimplification, especially in view of the radical reform often proposed, and it also downplays chilling effects associated with the constitution’s centralisation of government decision-making power.