Pressure is growing to renegotiate or leave an international convention blamed for slowing building projects and increasing costs after a judge warned campaigners they are in danger of “the misuse of judicial review”.
Under the Aarhus Convention, campaigners who challenge projects on environmental grounds but then lose in court against housing and big infrastructure have their costs above £10,000 capped and the rest met by the taxpayer.
Government figures say this situation is “mad” but ministers have not acted, despite promising to do so for months.
The Tories are today leading the call for change with a demand to reform or leave the convention.
In March, Sky News revealed how a computer scientist from Norfolk had challenged a carbon capture and storage project attached to a gas-fired power station on multiple occasions.
Andrew Boswell took his challenge all the way the appeal court, causing delays of months at a cost of over £100m to the developers.
In May, the verdict handed down by the Court of Appeal was scathing about Dr Boswell’s case.
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“Dr Boswell’s approach is, we think, a classic example of the misuse of judicial review in order to continue a campaign against a development… once a party has lost the argument on the planning merits,” wrote the judges.
They added: “Such an approach is inimical to the scheme enacted by parliament for the taking of decisions in the public interest,” adding his case “betrays a serious misunderstanding of the decision of the Supreme Court” and “the appeal must therefore be rejected”.
Another case – against a housing development in a series of fields in Cranbrook, Kent – was thrown out by judges in recent weeks.
The case was brought by CPRE Kent, the countryside challenge, to preserve a set of fields between two housing developments alongside an area of outstanding natural beauty.
John Wotton, from CPRE Kent, suggested it would have been hard to bring the challenge without the costs being capped.
“We would’ve had to think very carefully about whether we could impose that financial risk on the charity,” he told Sky News.
After his case was dismissed, Berkeley Homes said the situation was “clearly absurd and highlights how incredibly slow and uncertain our regulatory system has become”.
They added: “We welcome the government’s commitment to tackle the blockages which stop businesses from investing and frustrate the delivery of much needed homes, jobs and growth.
“We need to make the current system work properly so that homes can actually get built instead of being tied-up in bureaucracy by any individual or organisation who wants to stop them against the will of the government.”
‘Reform could breach international law’
Around 80 cases a year are brought under the Aarhus Convention, Sky News has learned.
The way Britain interprets Aarhus is unique as a result of the UK’s distinctive legal system and the loser pays principle.
Barrister Nick Grant, a planning and environment expert who has represented government and campaigns, said the convention means more legally adventurous claims.
“What you might end up doing is bringing a claim on more adventurous grounds, additional grounds, running points – feeling comfortable running points – that you might not have otherwise run.
“So it’s both people bringing claims, but also how they bring the claims, and what points they run. This cap facilitates it basically.”
However, Mr Grant said that it would be difficult to reform: “Fundamentally, the convention is doing what it was designed to do, which is to facilitate access to justice.
“And it then becomes a question for the policymakers as to what effect is this having and do we want to maintain that? It will be difficult for us to reform it internally without being in breach of our international law obligations”
In March, Sky News was told Number 10 is actively looking at the convention.
Multiple figures in government have said the situation with Britain’s participation in the Aarhus Convention is “mad” but Sky News understands nothing of significance is coming on this subject.
Image: ‘The country faces a choice,’ says Robert Jenrick
The Tories, however, want action.
Robert Jenrick, shadow justice secretary and former housing minister, said the Tories would reform or leave the convention.
He told Sky News: “I think the country faces a choice. Do we want to get the economy firing on all cylinders or not?
“We’ve got to reform the planning system and we’ve got to ensure that judicial review… is not used to gum up the system and this convention is clearly one of the issues that has to be addressed.
“We either reform it, if that’s possible. I’m very sceptical because accords like this are very challenging and it takes many many years to reform them.
“If that isn’t possible, then we absolutely should think about leaving because what we’ve got to do is put the interest of the British public first.”
Mr Jenrick also attacked the lawyers who work on Aarhus cases on behalf of clients.
“A cottage industry has grown. In fact, it’s bigger than a cottage industry,” he said.
“There are activist lawyers with campaign groups who are now, frankly, profiteering from this convention. And it is costing the British taxpayer a vast amount of money. These lawyers are getting richer. The country is getting poorer.”
The government has again delayed making a decision on whether the Chinese super embassy can go ahead.
New Housing Secretary Steve Reed, who took over from Angela Rayner, was due to approve or deny Beijing’s application for a 600,000 sq ft embassy near the Tower of London next Tuesday.
However, the decision has been delayed to 10 December, “given the detailed nature” of the planning application, and the need to give parties sufficient opportunity to respond”, the prime minister’s spokesman confirmed.
He added that the new deadline is “not legally binding”.
The spokesman denied the postponement was politically influenced and said it was “very much bound by the quasi-judicial” nature of planning law.
The delay comes the day after the government published witness statements it provided to prosecutors in the China spy trial that collapsed, prompting a blame game over whose fault it was that it dropped.
A decision had already been delayed from 9 September to 21 October after China submitted plans with large greyed-out sections, which said: “Redacted for security reasons.”
Image: The basements in most of the buildings have been greyed out ‘for security reasons’. Pic: David Chipperfield Architects
What are the concerns about the embassy?
It has become controversial due to concerns about it being turned into a Chinese spy hub for Europe and the fact highly sensitive financial cables run beneath it to the City of London and Canary Wharf.
The decision to delay again was made after the national security strategy committee wrote to Mr Reed on Monday saying that approving the embassy at its proposed site was “not in the UK’s long-term interest”.
Committee chairman Matt Western, a Labour MP, said in the letter the location presents “eavesdropping risks in peacetime and sabotage risks in a crisis”.
Tower Hamlets Council rejected China’s initial planning application in 2022 to turn Royal Mint Court, where British coins were minted until 1975, into the largest embassy in Europe over security concerns and opposition from residents.
Beijing did not appeal the decision after making it clear it wanted Conservative ministers to give assurances they would back a resubmitted application – but the then-Tory government refused.
Eleven days after Labour won the election last July, the application was resubmitted in nearly exactly the same form, and was soon “called in” by Ms Rayner for central government to decide.
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Will China super embassy be built?
Conservative shadow housing secretary Sir James Cleverly accused the government of having “actively sought to silence the warnings” about the threats to national security from the embassy.
“It is essential the planning review has access to the full unredacted drawings for the Chinese embassy, and that the UK security agencies are able to submit evidence in private, using established processes,” he said.
“If Keir Starmer had any backbone, he would ensure his government threw out this sinister application – as Ireland and Australia did when faced with similar embassy development proposals from Russia.”
What has China said about the concerns?
In August, the Chinese embassy in the UK said the planning and design was “of high quality” and the application had “followed the customary diplomatic practices, as well as necessary protocol and procedures”.
Image: There have been multiple protests against the embassy’s development at the Royal Mint Court site. Pic: PA
The embassy added that it is “an international obligation of the host country to provide support and facilitation for the construction of diplomatic premises”.
And it reminded the UK that London wants to knock down and rebuild the British embassy in Beijing, which is in a very poor condition.
In September, a Chinese embassy spokesperson told Sky News that claims the new embassy poses a potential security risk to the UK are “completely groundless and malicious slander, and we firmly oppose it”.
They added: “Anti-China forces are using security risks as an excuse to interfere with the British government’s consideration over this planning application. This is a despicable move that is unpopular and will not succeed.”
The government has published witness statements submitted by a senior official connected to the collapse of a trial involving two men accused of spying for China.
Here are three big questions that flow from them:
1. Why weren’t these statements enough for the Crown Prosecution Service (CPS) to carry on with the trial?
For this prosecution to go ahead, the CPS needed evidence that China was a “threat to national security”.
The deputy national security adviser Matthew Collins doesn’t explicitly use this form of words in his evidence. But he comes pretty close.
In the February 2025 witness statement, he calls China “the biggest state-based threat to the UK’s economic security”.
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Six months later, he says China’s espionage operations “harm the interests and security of the UK”.
Yes, he does quote the language of the Tory government at the time of the alleged offences, naming China as an “epoch-defining and systemic challenge”.
But he also provides examples of malicious cyber activity and the targeting of individuals in government during the two-year period that the alleged Chinese spies are said to have been operating.
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Witness statements published in China spy trial
In short, you can see why some MPs and ex-security chiefs are wondering why this wasn’t enough.
Former MI6 head Sir Richard Dearlove told Sky News this morning that “it seems to be there was enough” and added that the CPS could have called other witnesses – such as sitting intelligence directors – to back up the claim that China was a threat.
Expect the current director of public prosecutions (DPP) Stephen Parkinson to be called before MPs to answer all these questions.
2. Why didn’t the government give the CPS the extra evidence it needed?
The DPP, Stephen Parkinson, spoke to senior MPs yesterday and apparently told them he had 95% of the evidence he needed to bring the case.
The government has said it’s for the DPP to explain what that extra 5% was.
He’s already said the missing link was that he needed evidence to show China was a “threat to national security”, and the government did not give him that.
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3:07
What does China spy row involve?
The newly published witness statements show they came close.
But if what was needed was that explicit form of words, why was the government reticent to jump through that hoop?
The defence from ministers is that the previous Conservative administration defined China as a “challenge”, rather than a “threat” (despite the numerous examples from the time of China being a threat).
The attack from the Tories is that Labour is seeking closer economic ties with China and so didn’t want to brand them an explicit threat.
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2:40
Is China an enemy to the UK?
3. Why do these statements contain current Labour policy?
Sir Keir Starmer says the key reason for the collapse of this trial is the position held by the previous Tory government on China.
But the witness statements from Matthew Collins do contain explicit references to current Labour policy. The most eye-catching is the final paragraph of the third witness statement provided by the Deputy National Security Adviser, where he quotes directly from Labour’s 2024 manifesto.
He writes: “It is important for me to emphasise… the government’s position is that we will co-operate where we can; compete where we need to; and challenge where we must, including on issues of national security.”
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11:52
In full: Starmer and Badenoch clash over China spy trial
Did these warmer words towards China influence the DPP’s decision to drop the case?
Why did Matthew Collins feel it so important to include this statement?
Was he simply covering his back by inserting the current government’s approach, or was he instructed to put this section in?
A complicated relationship
Everyone agrees that the UK-China relationship is a complicated one.
There is ample evidence to suggest that China poses a threat to the UK’s national security. But that doesn’t mean the government here shouldn’t try and work with the country economically and on issues like climate change.
It appears the multi-faceted nature of these links struggled to fit the legal specificity required to bring a successful prosecution.
But there are still plenty of questions about why the government and the CPS weren’t able or willing to do more to square these circles.