Welcome to another fun-packed year in HS2 Land, part 9

(… continued from Welcome to another fun-packed year in HS2 Land, part 8, posted on 30 Jan 2015).

My crystal ball is beginning to get quite cloudy now – perhaps I have overused it – so I will draw to a close my musings about what might, or might not, happen during the year 2015 on the HS2 front in this and the next posting, which will be the final two on that topic. However, I have got one or two odds and ends still to consider.

The first is the HS2-HS1 link. In his written statement of 17th March 2014, the Rt Hon Patrick McLoughlin MP said that he would “commission a study into ways to improve connections to the continent that could be implemented once the initial stages of HS2 are complete”. Now there is obviously no urgency indicated by that statement, and it appears to me that that HS2 Ltd regards the only Phase 1 activity that is required on this matter as the expunging of all traces of the link from the Phase 1 hybrid Bill documentation; this will presumably be done in a future additional provision, possibly AP2. In support of this view, I offer the evidence of paragraph 7.1 of the document High Speed Two Information Paper A1: development of the HS2 proposed scheme:

“While a link between HS2 and HS1 was originally included in the plans for HS2, following the Higgins Review in March 2014, the Government removed it from the project.”

If, as seems most likely, the solution is to be improved passenger transit between Euston and St Pancras, then it would seem logical for the means of conveyance to be included in the announcement about the redevelopment of Euston station that is promised in September 2015, but I wouldn’t hold your breath. I don’t think that the Government and other supporters of HS2 will want to provoke reaction to this compromise until the sealing wax has well and truly set on the letters patent confirming Royal Assent for Phase 1.

In contrast to this uncertainty about what we might expect to happen on the HS2-HS1 link, I think that we can be fairly sure that 2015 will see more legal action in the HS2 arena. There are two outstanding matters that we should see progress this year.

The first is the application for judicial review by the Information Commissioner of a request for information made, under the FOI legislation, by Dr Paul Thornton. This concerns Dr Thornton’s request for the Gateway Review reports prepared by the Major Projects Agency on the HS2 project to be made public. This application is awaiting the outcome of another judicial review application that was heard by the Supreme Court on 24th and 25th November 2014, since there are similar points of law in the two cases. It would appear that judgement is still awaited in this other case.

The request for a judicial review follows the decision by the Information Commissioner that the MPA report should be published and the exercise of the power of veto over this decision by the Transport Secretary. Those wanting a good overview of the history of this matter could do no better than to consult three blogs posted at various times on the Stop HS2 website (30 Jan 2014, 24 Jun 2014  and 12 Dec 2014).

I would think that we can expect the Supreme Court judgement in the “blocking” case to be handed down early in 2015, leaving the way clear for the appeal on the MPA report to be heard in a lower court sometime, hopefully fairly early, this year. With any luck, we all might get to learn what criticisms the MPA has made of the HS2 project – Sir David Higgins has admitted that there are 75 of these (see footnote) – sometime in 2015.

I think that it is extremely unlikely that we will see any other action concerning HS2 in the UK courts this coming year, but the focus on whether HS2 has complied with environmental law has shifted to the international stage and we can expect to witness some developments there. The story so far is that three parties (HS2 Action Alliance, the London Borough of Hillingdon and Charlotte Jones) have together deposited two “communications” with the Aarhus Convention Compliance Committee. The first communication alleges that the UK Government breached Article 7 of the Aarhus Convention in failing to provide sufficient environmental information about HS2 and its reasonable alternatives. The second alleges that the European Commission has failed to comply with its obligations under Article 7 to put in place [an effective] regulatory framework for the public participation in such plans and programmes within the EU.

In the middle of last year the HS2 Action Alliance confirmed that the Compliance Committee had found both complaints admissible. My understanding is that the UK Government and the EC were given until this month (February) to respond to these allegations and that the next step will be for the “communicants” to present their complaints to the Compliance Committee.

A guide published by the international monitoring NGO CEE Bankwatch estimates that it takes about nine to twelve months from the submission of a compliant for the Compliance Committee to make its findings known, so we should know later this year. However the guide also warns that final decisions on specific measures aimed at bringing about full compliance with the Convention can only be made by a plenary meeting of all signatories to the Aarhus Convention, known as a “Meeting of the Parties”, and that these are held at intervals of two to three years.

(To be concluded …)

Footnote: Sir David Higgins revealed this information to the House of Commons Governance Committee at an oral evidence session held on Wednesday 26th November 2014 (see Q577 in the transcript).

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