The environment was the real loser, part 1

I had really hoped that the UK Supreme Court would turn out to be a knight in shining armour, charging in to protect the environment from the bashing it could look forward to from our representatives in Westminster and HS2 Ltd. At about half-way into his speech handing down judgement yesterday morning (video), it was apparent that Lord Reed was going to disappoint me; he uttered the dreaded words “the further appeal to this Court is unanimously dismissed”. It subsequently become known, from the summary issued by the Court, that the Supreme Court also saw no need for a reference to be made to the Court of Justice of the European Union to clarify EU Law on this matter.

I have examined the issues that the Supreme Court was deliberating at length in past blogs – my most recent attempt at this being A Daniel come to judgement (part 1 posted 4 Aug 2013, part 2 posted 8 Aug 2013 and part 3 posted 12 Aug 2013) – but I feel a brief(ish) summary of the issues facing the Supreme Court is in order, and can find no better forms of words for this than those used by Lord Reed in his statement.

The first issue described by Lord Reed, was the subject of the appeal lead by the HS2 Action Alliance (HS2AA), whose case he summarised as follows:

“… the Command Paper [High Speed rail: Investing in Britain’s Future – Decisions and Next Steps] which preceded the Bill in which the Government set out its proposals for HS2 fell within the scope of the EU Strategic Environmental Assessment Directive and that a strategic environmental assessment should therefore have been carried out. The Directive applies to ‘plans or programmes which set a framework for future decisions whether to grant development consent for projects’. It’s argued that the Command Paper set the framework for the decision whether to grant consent for HS2.”

The second issue, was appealed by the 51m group lead by Hillingdon London Borough Council, and was summarised, somewhat less briefly, by Lord Reed as follows:

“… the legislative procedure in Parliament does not meet the requirements of the EU Environmental Impact Assessment Directive. The European Court of Justice has interpreted that Directive as imposing a number of requirements. These include a requirement that the Legislature must have available to it the information required by the Directive, and a requirement that national courts must be able to verify that the requirements of the Directive have been satisfied, taking account of the entire legislative process including the preparatory documents and the parliamentary debates.

“In two cases before the Court of Justice, the Advocate General has interpreted the Directive as also requiring that the national court must decide whether the legislative process has allowed sufficient preparation and discussion time for the legislature to be able properly to examine and debate the environmental effects of the project. On that basis, the Appellants argue that this Court should assess the likely adequacy of the parliamentary procedures and debates concerning HS2, including the extent to which Members are likely to consider, understand and apply an independent mind to environmental issues. It is argued that Members of Parliament will not apply an independent mind to the issues, since votes in the House of Commons are likely to be subject to the whip, members of the Government can be expected to vote in accordance with their collective responsibility, that the time allowed for debate will be too short to enable members to give adequate consideration to the environmental issues, and that most members are unlikely to attend the debate in any event. In these circumstances, it is argued, the parliamentary procedure will fail to comply with the requirements of the Directive.”

As regards the second issue, Lord Reed summarised why the Supreme Court had dismissed the appeal by the 51m group:

“… the Court does not accept that the EU Directive was intended to subject the operations of parliamentary democracy to the degree of judicial scrutiny suggested by the Advocates General. The Court of Justice has not endorsed their interpretation, but has repeatedly said that it is for national courts to determine whether the conditions which it has laid down have been satisfied. It cannot have been unaware of the importance of the separation of powers in European democracies, and of the mutual respect which governs the relationship between the courts and the legislature, not only in this country but elsewhere, and this Court is not persuaded that it intended to override them. The Court also notes that the contrary view would result in a conflict between EU Law and the Bill of Rights of 1689, and it refers to a principle developed in German Law that judgements of the European Court of Justice should be interpreted so as to avoid a conflict with national constitutional principles.

“The Court does not, in any event, accept that parliamentary procedure is incompatible with EU Law, by reason of the influence of political parties and government policy upon voting. The legitimate role of political parties is recognised in EU Law, in the Treaty on European Union and in the EU Charter of Fundamental Rights, and it is part of the constitutional tradition of the UK and other Member States. The influence of party policy, or government policy, does not prevent Members of Parliament from giving responsible consideration to the matters that they have to decide, and the Court sees no reason to doubt that, when they come to make their decision on the HS2 Bill, they will have adequate information available to them to allow them to consider the environmental implications of the proposal.

As regards the last point, the “adequate [environmental] information” that MPs will have available is the 50,000 page Environmental Statement (ES). Many of us who have been studying this document have doubts about its objectivity and, despite its huge size, some have even questioned its comprehensiveness. So whether the ES does prove to be “adequate” is a moot point, but one very real doubt is whether anybody, MP or otherwise, is really capable of fully assimilating its contents and applying that knowledge to making environmental assessments.

As far as the Supreme Court’s decision is concerned, I have to admit that I am not surprised. For the Court to have decided in favour of the appeal would have put the judiciary in a very uncomfortable place, constitutionally. As Lord Reed said it would have been in conflict with the Bill of Rights. As 51m has since commented:

“[We] do not believe that this decision endorses a fair and open process for decision making. It merely reflects the Court’s lack of desire to interfere with Parliament’s business on the understanding that a democratically elected body will respect the wishes and needs of the people.”

In the light of this Supreme Court decision, it would appear to be down to members of the campaign against HS2 to do our best to ensure that Parliament does a good job on HS2, and to hold its Members to account if they fail to give proper regard to the environmental impacts of the HS2 proposals. In this respect, what we need to do right now is to take part in the consultation on the ES, with the aim of trying to ensure that it is the best that it can be, and to petition the hybrid Bill in due course to seek a less environmentally damaging design.

The 51m group certainly doesn’t regard today’s decision as the end of the line:

“The councils are not going to give up the fight. They believe that the Government has not followed the correct procedures and is still looking to take a number of short cuts in relation to the project, to the detriment of its residents.”

(To be concluded …)


2 responses to this post.

  1. Posted by chriseaglen on January 23, 2014 at 8:49 pm

    Rather weak positions being proferred. Compentence is not information or knowledge but application of skills and practices leading to successful outcomes and services.

    Your presentation of the paving bill showed the unreal world for simply granting permission to spend tax payers money. The Hybrid Bill is NOT the same as a detailed planning process as known in the UK for projects.

    Dysfunctional approach by the UK is something we should all feel respresents the worst for Britian not the Best of British. Shocking to find we are living a lie about ability to fund and the oh well approach represented in the 51M statement needs changing to a leadership statement. You asked where is Cromwell. Where is Churchill but where are the British defeated or to achieve better please. Now is the time for reality the UK gets a bad deal or we start to be realistic and produce better proposals. Hopefully it will be the latter but it depends unfortunately on MPs who have lack of tenure these days.


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