The environment was the real loser, part 2

(… continued from The environment was the real loser, part 1, posted on 23 Jan 2014).

During his speech handing down judgement in the UK Supreme Court on Wednesday 22nd January 2014 (video), Lord Reed gave a summary of the Court’s decision in the matter of the applicability of the EU Strategic Environmental Assessment Directive (SEAD) to the HS2 project; it was short, if not exactly sweet:

“The Appellants’ argument is rejected on the basis that the Command Paper fell outside the scope of the Directive. It did not set a framework for the decision whether to grant consent for the HS2 project, since it did not constrain Parliament’s decision in any way. It simply set out a proposal to be brought forward in a Bill, leaving entirely up to Parliament the decision that it might take in relation to the Bill.”

I think that it is worth reminding ourselves at this juncture what function the SEAD serves. The first judge to sit on the judicial review, Mr Justice Ouseley, gave a very succinct definition in his judgement delivered in the High Court in March 2013 – a definition that I quoted in my blog Confusion over traffic light causes dangerous driving, posted 25 Mar 2013:

“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 I think that you would be hard pressed to find an example in recent years of a project that is more “likely to have significant effects on the environment” than HS2, and yet the outcome of the Supreme Court judgement is that it appears that HS2 does not require a strategic environmental assessment to be carried out. It follows surely that the UK environment has not been afforded the “high level of protection” that our EU lawmakers were seeking. I said in Confusion over traffic light causes dangerous driving that, “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”, and I still believe that now.

Whatever, the correct interpretation of UK Law is – and I think that we must assume that the interpretation applied by the Supreme Court is definitive – then it doesn’t seem correct that different environmental standards should apply to different planning proposals within the UK, and that the most destructive proposal of all can simply by-pass an essential stage of environmental checking. I can’t help reflecting that, if the boot were on the other foot and the Government had been disadvantaged by a similar loophole, we would see the relevant minister scurrying to Parliament to seek emergency legislation to restore sanity to the Law.

My sentiments appear to be shared by the Cabinet Member for HS2 at Warwickshire County Council, a 51m group member. Cllr Bob Stevens is quoted on the WCC website observing, “It remains an extraordinary situation where the country’s largest infrastructure project for decades has not been subject to a full environmental assessment compared against alternatives”.

The lead Appellant for the SEAD claim, HS2 Action Alliance (HS2AA), has starkly defined the place where we find ourselves in the wake of the Supreme Court’s decision in a press release:

“The consequence of today’s decision, is that the SEA Directive can never apply to infrastructure plans where a national parliament grants the planning permission. The impact of this decision is that Governments can avoid laws designed to protect the environment by choosing to obtain planning permission from Parliament, rather than from an independent commission or inspector.”

HS2AA also makes the very-valid point that the decision has “obvious EU-wide implications” and, therefore, the matter should have been referred to the Court of Justice of the European Union “for a definitive ruling”. In an additional judgement, Lord Sumption explains the Court’s ruling that such a reference is not appropriate on the grounds that EU Law is acte clair, meaning that it is reasonably clear and free from doubt.

Now, out of respect for our legislature, I have been measured in my comments on the Supreme Court’s findings, but HS2AA, in its press release, obviously does not feel as constrained as I do:

“HS2AA considers that the Supreme Court’s restrictive interpretation of the SEA Directive is incorrect, and that its refusal to refer the matter to the European Court of Justice is in breach of its obligations under the EU Treaty.”

My response to this, in the phrase coined by fictional Prime Minister Frances Urquhart, is, “You might very well think that; I couldn’t possibly comment.”

HS2AA also postulates that, if the Supreme Court is correct in maintaining that EU Law condones the failure to apply SEAD requirements where the national legislature is the decision-making body, then the EU is “in breach of its international obligations under the United Nations Aarhus Convention”. According to HS2AA, “The Convention requires the EU to have in place a regulatory framework for public participation in all plans relating to the environment, not just plans that are made under the limited circumstances that the Supreme Court says are subject to the Directive” (see footnote).

In a speech that was delivered two days after Lord Reed had handed down judgement, the Transport Secretary, the Rt Hon Patrick McLoughlin MP, grumbled that:

“It was seeking Judicial Review on a technicality. They had already lost at the High Court and then lost again at the Appeal Court. But still they appealed to the Supreme Court. It was a waste of their time, of your time and of taxpayers’ money. I’m pleased the Supreme Court has now found in our favour so we can get on.”

I couldn’t disagree with him more. The only “technicality” that was in dispute was the Government’s claim that a document that included the word “decisions” in the title was actually not a decision. What the Appellants were seeking was for EU environmental Law, that is designed to protect our environment from inappropriate development, to have force in the case of HS2 – hardly a technicality.

It appears that HS2AA does not see the Supreme Court judgement as the end of the line:

“… HS2AA will bring a complaint to the Aarhus Convention Compliance Committee because the Supreme Court’s restrictive approach is contrary to the Aarhus Convention. The Compliance Committee has the power to find that the Supreme Court’s decision leaves the UK in breach of their UN Treaty obligations under the Aarhus Convention.”

We are also promised that:

“HS2AA is also planning to bring a complaint to the European Commission. If this complaint is accepted, then the UK Government will be taken to the European Court of Justice to explain why it has not completed a Strategic Environmental Assessment for HS2. The European Court of Justice will then rule on the correctness of the Supreme Court’s decision.”

In addition, in a statement on the 51m website, the leader of Hillingdon Council, Ray Puddifoot, promises yet more legal action:

“The council is not going to give up the fight. Hillingdon has already brought a further judicial review challenge, jointly with HS2 Action Alliance, on the basis that the Government failed to carry out a Strategic Environmental Assessment before issuing Safeguarding Directions.  This challenge was put on hold until the Supreme Court had issued its judgment.”

I feel tremendous sympathy for the appellants and their legal teams, who have fought long and hard to get the UK courts to take the Secretary of State to task, and to those who have donated the money that made the judicial review possible; all of us who oppose HS2 owe all of them a tremendous debt. My view is that the case has been made skilfully and convincingly, and it is shattering that it has been lost and, furthermore, rejected so comprehensively by the highest court in our realm. No one likes to be a loser, but I can’t help feeling that this time it is the environment that was the real loser.

Footnote: Article 7 of the Aarhus Convention requires signatories to “… make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public”.

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One response to this post.

  1. Posted by chriseaglen on January 30, 2014 at 9:12 pm

    A new judicial review before Feb 25th against the Government depositing this Hybrid Bill that is not technically definitive. The exclusion of one or more alternative(s) to not make this hybrid bill clearly voidable should be challenged a premature.

    The Government and its advisers know how vague the Maps in Volume 2 CFAs are and this is not acceptable with Hybrid Bills.

    This Hybrid Bill is a document yourself and others should read thoroughly and make amendment proposals to MPs please. There are some clever people could help the few known MPs to better challenge the few briefed and mentored MPs who have more grasp of the subject matters.

    Hope you can identify some issues and synthesise some amendents in this months articles to help the MPs prepae their grounds. Thank you.

    Reply

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