Confusion over traffic light causes dangerous driving

In Sorry seems to be the hardest word (posted 21 Mar 2013) I gave my reactions to Mr Justice Ouseley’s judgement in the HS2 judicial review, particularly on the one issue where the Judge ruled against the Secretary of State concerning the challenge by the HS2 Action Alliance (HS2AA) on the matter of compensation. In this present blog I will look at one of the other nine issues that the Judge identified where he found in favour of the Secretary of State – whether the EU Strategic Environmental Assessment Directive (SEAD) applies to the HS2 project. This matter featured in the applications made by three of the five claimants (51m, HS2AA and Heathrow Hub), but it was HS2AA that took the lead.

In my blog Matters of interpretation (posted 20 Mar 2012) I broached this very issue of whether the SEAD is applicable to HS2. The conclusion I reached there was that it would have to be decided in a court of law and such a decision has now been reached, at least as an initial determination. Mr Justice Ouseley has ruled that the “decision-making” process which the Department for Transport (DfT) has undertaken is not required to follow the SEAD requirements, since it is Parliament, not the DfT, that is the decision maker in the case of HS2.

It was suggested to Mr Justice Ouseley by Counsel during the hearing that, in practice, Parliament’s strings are firmly controlled by the Government by the application of whipping to Members of Parliament – well it wasn’t said in those words, but that was what was meant, I think. The Judge’s view on this is given in paragraph 99 of the Approved Judgment:

“But it would be wrong for the Court to rule that Parliament, whipped or not, is not constitutionally free to reach whatever conclusion it wishes, and to weigh Government policy entirely as it sees fit.”

Now the Judge is of course entirely correct in this in principle and Parliament does, on rare occasions, disagree with the policy of the government of the day. However, the political situation on HS2 is such that Parliament appears to be set to rubber stamp the Government’s proposals in the general form that they are being set out, with only changes in details resulting from the scrutiny of Parliament.

It appears to me that the force of the Judge’s ruling is to provide the ability for the hybrid bill process to frustrate the real purpose of the SEAD. This purpose is expressed very succinctly by the Judge in paragraph 18 of the Approved Judgment:

“The SEAD applies at an earlier stage when the framework for the consideration of development consent for such projects was being set, and before options for significant change were precluded. Hence the objective of the Directive, as explained in Article 1, is to provide for a high level of protection of the environment, integrating environmental considerations into the preparation and adoption of plans and programmes, by ensuring that an environmental assessment is carried out of ‘certain plans and programmes which are likely to have significant effects on the environment’.”

Now it cannot be argued that HS2 is not “likely to have significant effects on the environment”, but it appears that the hybrid bill process is preventing the necessary environmental evaluations of HS2 and its alternatives “before options for significant change were precluded”. The hybrid bill appears to be allowing a coach and horses to be driven through what I assume were the intentions of those who drafted the SEAD.

My view, for what it’s worth, is that an important principle of European environmental law has been tested in the High Court and it is essential that it be subjected to the full scrutiny of higher courts, including those of the EU should that be thought necessary. The Judge appears to have been sympathetic to this view, and granted HS2AA leave to appeal this decision.

There is one further matter that the Judge considered in relation to the SEAD issue, which is the claim by the Secretary of State, reported in paragraph 107 of the Approved Judgment, that the Appraisal of Sustainability “was intended to be fully compliant with the principles of the SEAD”. This potential obstacle to the clear determination of the SEAD required/not required question appears to have been removed by the Judge ruling that “the AoS did not comply substantially with the SEAD, if it had to” (in paragraph 172 of the Approved Judgment).

In a DfT press release Transport Minister, the Rt Hon Simon Burns MP, is quoted as heralding the outcome of the judicial review as “the green light for the government to press ahead without delay in building a high speed railway from London to Birmingham, Manchester and Leeds”. I believe that he is mistaken in this. In view of leave to appeal being granted to HS2AA on the SEAD issue, the colour of the traffic light should be seen as amber, not green. The Minister would be well advised to follow the advice of the Highway Code and “proceed with caution” rather than motoring at full pelt to a possible car crash further down the road.

Surely, the prudent approach would be for the Government to seek to make the HS2 proposal fully compliant with the SEAD to ensure that any turn-around on appeal does not result in taxpayers’ money being wasted.


One response to this post.

  1. Posted by chriseaglen on March 29, 2013 at 7:02 am

    The issue is DFT HS2 designed a consultation process that was unfair to those people who missed the opportunity in 2010 to obtain consciencous consideration for the impacts on their land, businesses, facilities, communities and homes. This is the cardinal injustice. The Public consultation in 2011 was deemed too late to be heard on a private and focussed basis when HS2 and DFT and DCLG and othes did not want or know about a matter. Ad hoc processing due to a designed process to disenfranchise.
    SEAD requires the involvements of English Heritage Natural England Environmental Agency in assessing changes and alternatives and this has not been achieved hence the coded wording and passing the process to hybrid bill which is too late in design and planning. If the step after the Parilamentary reviews wss now look at alternatives and all location with harmful impacts there would be a different behaviour.

    Consultation process was what should have been challenged not consultation.

    Harmed party is what should replace stakeholder to key stakeholder.


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