Sorry seems to be the hardest word

Regular readers of this site may have been surprised that the blog that I posted on the Sunday following “judgement day” in the High Court made no mention of Mr Justice Ouseley’s findings or their implications for the HS2 project. You may have thought, “All this excitement going on and all he wants to do is rant about the loss of ancient woodland, again”. My reason for this apparent indifference to the outcome of His Lordship’s deliberations is that I wanted time to reflect on the implications before committing my thoughts to print. I think that these reflections have now reached the point where I can make some initial comments. Since I am not a lawyer, I will try to avoid commenting on the legal arguments and look at the implications of what Mr Justice Ouseley decided for the Government, the HS2 project and the campaign against it, and the environment.

The first point that I wish to make is that, for the convenience of the Court, Mr Justice Ouseley heard five applications from four parties together. In his judgement he lists ten separate “issues” that he has considered. Encouraged by Government spin, much has been made in the subsequent media coverage that this judgement only upholds the application in one of these ten issues; the compensation challenge by HS2 Action Alliance (HS2AA).

What I think that we should reflect on is that if the HS2AA application had been heard alone in the High Court, the judgement would have been viewed as a severe embarrassment for the Government and a significant defeat. It is only that the outcome of the combined judicial review has been spun by the Government as “nine won, only one lost” that ministers have been able to avoid facing up to the severity of the rebuke that the Judge has delivered on the conduct of the compensation consultation.

What the present Secretary of State for Transport should be doing is apologising, on behalf of his predecessor Justine Greening, to all those property owners who have been blighted by HS2, for her presiding over a consultation process which Mr Justice Ouselely described as “so unfair as to be unlawful”. What he should not be doing is allowing his Transport Minister, Simon Burns, to triumphantly claim in a Department for Transport (DfT) press release that, “This is a major landmark victory for HS2 and the future of Britain”.

Specifically on the defeat on the compensation consultation, Mr Burns is quoted in that press release as saying:

“We have listened to the judge’s comments about the property compensation consultation and to save time and public money we will reconsult on this aspect – but this will not delay HS2. We remain fully committed to fairly compensating the public who are impacted by the scheme.”

So no hint of remorse there, then. A sense of relief perhaps, that the outcome will not delay the white elephant’s progress, but certainly no remorse. We are asked to believe that the Government will not contest Mr Justice Ouseley’s findings “to save time and public money”; although I suspect that it is more to do with a realisation that the chances of success on appeal may not be very good.

That the Government has opted to reconsult is surely down more to pragmatism than a Damascene conversion; this course of action appears to be the only way forward as the Judge has quashed the 2012 decisions on compensation made by Justine Greening.

So the many thousands of affected property owners may take some comfort in the Government’s reassurance that it will reconsult on compensation, although I am sure that no one is relishing the prospect of responding to yet another public consultation.

So when Patrick McLoughlin gets around to apologising to us all for his department running a consultation that the Judge described as “doomed from the start”, he should reflect upon the public money that has been wasted. He should also apologise to all those who responded to the consultation for wasting their time. In particular, he should grovel to HS2AA for what the Judge described as the “sorry saga” that led to that organisation’s “careful and substantial” submission on the compensation proposals being “brushed aside”.

Far from it being contrite, there is surely some doubt that the Government will be able to avoid the temptation of regarding this rerun as a necessary hoop to jump through on the path towards securing the same outcome. For me, one sentence in the DfT press release hints that this approach may be what the Government is contemplating:

“The judge has not commented on the merits of particular property compensation schemes and he has not said the government should introduce a property bond – preferred by HS2AA.”

Now I accept that the experience of witnessing nearly three years of the Government’s handling of the HS2 project has left me very suspicious of its motives and with a view that goodwill is totally lacking in its approach. However I feel that for the Government to ignore the Judge’s observation that “bizarrely” only 21 respondents to the 2011 consultation (out of 36,036 that commented on property blight) opted for the scheme chosen by the Government, and to reinstate that scheme following a sham consultation, would be taking Government cynicism to a new height.

PS: The Approved Judgement by Mr Justice Ouseley, all 259 pages of it, may be read in full here.


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