SOPPPPs and SLAPPs

the importance of giving something a name

As promised earlier in the week, here is a rare example of me proposing something positive rather than moaning all the time. Although I don’t think there is much to be gained from tweaking judicial review (and considerable potential to do damage, both by missing important objections and by further undermining the sense of democratic legitimacy of the process), there is a real problem in planning that needs to be addressed.

And that problem is what might be called the SOPPPP – a Strategic Objection Purely to Protect Property Prices.

I think what really bothers people about the environmental, habitat and other protections is the perception that they are being used in bad faith. And this does happen; in researching the Sheephouse Wood Bat Mitigation Structure, I was struck by the fact that Buckinghamshire Council had, very late in the process, issued a lot of Tree Protection Orders on woodland that they had never thought worth protecting until it became clear that they weren’t going to be able to rely on Natural England and the bat habitats to deflect HS2 for them. The

That sort of behaviour can’t be tolerated; I don’t think it’s actually as common as the people who want to leave the Aarhus Convention suspect, but I can see why they think that way. Bad faith use of the legal system is incredibly corrosive of public trust; it’s much more antisocial behaviour than painting graffiti on a bus stop.

I said on Wednesday that infrastructure planning problems, in my mental model, share a common structure with the problem of libel law, which explains why both of these fields have consistently disappointed us with successive rounds of reform that don’t work. Libel risk is, unfortunately and due to the extreme expensiveness of lawyers, close to existential for news organisations. Consequently, they take the same approach to it that infrastructure developers take to planning risk; rather than maximising expected value, they first need to reduce the likelihood of a bad outcome below some threshold value. In newspapers, that means that good stories get spiked.

Libel also has the problem of strategic abuse, to the extent that they have a name for it – the Strategic Lawsuit Against Public Participation or SLAPP. And giving a name to the practice of using meritless lawsuits to intimidate critics has had an affect. Once you’ve given it a name, you can start to legislate against the practice; lots of places now have actual anti-SLAPP statutes, and even where there isn’t one on the books, there’s a bit of precedent and basis for a judge to take into account whether something is a SLAPP or not when making case management decisions and considering motions to dismiss.

And once you’ve named something, you can stigmatise it. Lawyers who care about their professional reputation don’t like to be associated with SLAPPs. If you want to SLAPP someone, you usually end up going to one of the firms that are known to be SLAPP merchants, which reduces their effectiveness because it alerts everyone to what’s going on.

So – I think one useful reform (that wouldn’t even cost anything!) would be to introduce the SOPPPP concept to planning, and even maybe pass some token legislation against them. I think it would be extremely difficult to ever actually prosecute someone for abuse of the planning process, but laws do sometimes send a message. You could include it in the standards in public life that elected representatives shouldn’t get involved in this sort of thing and should be censured if they do. And professional services firms would have to make more of a choice about the kinds of clients they took on, if they didn’t want to get a bad name.