A Daniel come to judgement, part 2

(… continued from A Daniel come to judgement, part 1, posted on 4 Aug 2013).

Lord Justice Sullivan, in his dissenting judgement given in paragraphs 145 to 188 of the Approved Judgement, gives consideration to the submission by the Counsel for the Secretary of State that the gap that the case had identified in the EU strategic environmental protection directive “was not desirable” but would be “filled by a more extensive Environmental Statement (ES) under the EIAD” [155]. Lord Justice Sullivan does not see this as an effective remedy:

“The fact that a government promoting a project via national legislation might choose to fill the gap by providing more information about alternatives than the minimum required by Article 5.3(d) of the EIAD is no answer. If development consent is sought via a legislative process the EIAD does not require the executive promoting the project to fill the gap, and if the gap is not filled the legislature is free in such a process to give whatever weight, if any, it chooses to give to the omission.” [157]

In his review of two cases brought before the Court of Justice of the European Union (CJEU) that are “of relevance to this issue” [160], Lord Justice Sullivan observes that the CJEU has, “consistently adopted a purposive approach to the interpretation of the terms used in the SEAD in order to ensure that ‘the practical effect of the directive, having regard to its objective, which consists in providing for a high level of protection for the environment’ is not frustrated” [161]. He expresses the opinion that any interpretation of the directive that “would enable the governments of member states to carve out an exemption from the SEAD for those projects for which they choose to obtain development consent by ‘specific acts of national legislation’ would be contrary to the purposive approach to the interpretation of the directive adopted by the CJEU” [164].

Lord Justice Sullivan appears to be far from happy that HS2 should be able to be exempt from the SEAD:

“…the ‘High Speed Rail Strategy’ set out in the DNS is a prime candidate for an SEA if the objectives of the Directive, to provide for a high level of protection for the environment, and to ensure that certain plans and programmes which are ‘likely to have significant effects’ on the environment are subject to an SEA, are not to be frustrated. The Respondent was not able to identify any current UK project which is likely to have more significant effects on the environment.” [164]

He does not follow the “constitutional” position regarding the way that Parliament reaches its decisions, but adopts a more pragmatic view that most of us will be able to identify with:

“In my judgment, there is cogent evidence that there is a real likelihood that the DNS will influence Parliament’s decision on HS2.” [173]

He asserts that, “The well-established convention of collective ministerial responsibility will ensure that the plan prepared by the Government (the DNS) will in fact have a very significant influence upon Parliament’s decision making process in respect of a Government Bill” [173], which we surely all know will be the case. He comments that ensuring that “the objectives of the SEAD and the EIAD are achieved” requires a court to “look at the substance, and not simply the constitutional formality, of the entire decision-making process” [174] and accuses his fellow judges on the bench of the Court of Appeal of taking a stance which serves to “carve out … an exclusion from the SEAD” [174].

Lord Justice Sullivan also considers the obligation of Article 7 of the Aarhus Convention, which requires the Government to make provisions for “the public to participate during the preparation of plans and programmes relating to the environment”. He observes that “it is no answer that there will have to be public participation in accordance with the EIAD” since, “By the time that consultation takes place consideration of strategic alternatives will have been foreclosed by the legislative process and the pass will have been sold” [178].

Having considered all of these points his judgment is unequivocally that, “[The DNS] is not excluded from the scope of the Directive simply by reason of the fact that development consent is being sought via the hybrid bill process [179]”. His conclusion is that “an SEA was required” [182].

(To be continued …)

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3 responses to this post.

  1. Posted by chriseaglen on August 8, 2013 at 7:48 am

    A security project or a project where there is a large impact of benefit versus local impact eg nuclear clean up may be such a project. Our situation here is the UK conundrum of supremecy of Parliament and the need for oversight. Ouseley referred to counter objecters not having an input after Command Paper 2010. Imperfections of the UK approachs trying to rationalise all these concepts is the issue. When Parliament does not act sensibly as with Credit/Debt mismanagement we have this problem. Presidential style politics with stubborn dogma results in this impasse. Framework in EC is a decision. Route 3 was the decision making the most damage and the judges want it to be both ways. They are using literal method not purposeful method. The legal team needs to be more robust on EU law.

    Reply

    • In view of your comments Chris I assume that you would agree with me that Lord Justice Sullivan is right to suggest that the issues that this case has raised can only be properly decided by the CJEU.

      Reply

  2. Posted by chriseaglen on August 8, 2013 at 3:31 pm

    Yes, or by a sensible political administration admitting there is an issue which MPs could resolve if they were concerned about best practices not sharp practices. There may be two issues: Issue1. Is the lack of independent oversight which SEAD trys to address with the prework needed for the large projects such as HS2 where checks and balances and objectives were not fully addressed in the beginning and where the cart has followed the horse and continues to do so as case and challenge results in repairs and partial addressing by an after the event document. Issue 2 is also a concern and this may need Phase 2 legal challenges to address and that is the failure of the HS2 process to adequately permit counter objections which Ouseley mentioned but then said it is all too late because of Command Paper 2010 you all missed the change. The 51M OA approach was only one of many longer length and shorter length alternatives.
    The heads down charge approach is not the right way to dealing with a situation with large scale genuine public concern. By taking the view you are too late and we do not need to listen to the concern is not wise for any administration. Lord Sullivan was able to provide a reason for the UK to say we should consider having a Rail Commission like the Airports Commission, decide what we have learnt and determine what we can afford and do to improve some of the routes. SRA missed this opportunity and DFT could have started with a SEAD approach to determine with Counties and Local Authorities what is beneficial and how the infrastructure can be delivered with least environmental impacts. This could have been a UK wide consideration. Yes I do agree that the CJEU could properly decided for each of the EU nations including the UK where there are historic practices but where we all are in the same diminishing resources situation.

    Reply

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