Thursday, 30 January 2014

HS2 ~ Nothing to hide: nothing to fear ?

In March 2011, a Major Projects Authority (MPA) was created by the government in order to enhance scrutiny of major projects. The MPA prepared a report - (the Project Assessment Review or PAR) - on the High Speed Rail 2 (HS2) which, reportedly, raises concerns about the project (Telegraph 30th January).  In June 2013, the Information Commissioner issued a Decision Notice relating to this report - Decision Notice  FER0467548

The Commissioner found that the request should have been considered under the Environmental Information Regulations 2004 and disclosure of the report was ordered.

The government has now used
its "executive override" to prevent disclosure of the report - Exercise of the Executive Override under section 53 of the Freedom of Information Act 2000

Section 53 -  makes the Information Commissioner's Decision Notice ineffective.

The statement of reasons put forward by the "accountable person" - (who is Patrick McLoughlin MP) - begins:

"Pursuant to section 53 of the Freedom of Information Act 2000 ("the Act") and regulation
18(6) of the Environmental Information Regulations 2004 ("the EIR"),I have today signed
a certificate in respect of the Information Commissioner's decision notice FER0467548 of 6 June 2013 ("the Decision Notice").

That Decision Notice found that the Cabinet Office had failed to comply with its obligations
under the EIR in refusing to disclose a Project Assessment Review ("PAR") report concerning
High Speed Two ("HS2"), .........., 

In reaching this decision, I have taken account of the views of Cabinet and the Information

The need for environmental information about the HS2 project was key to the Supreme Court's recent decision in High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary

It cannot be clear to the public whether the report does contain environmental information.  It may be merely a report (as McLoughlin claims) on the arrangements needed to deliver the project.  In his statement of reasons, Mr McLoughlin says that there is, in his view, a powerful argument that the report is "non-environmental information".  However, even if it is environmental information, he argues that the decision to withhold the report is still justifiable.

The Supreme Court's decision was essentially based on the reasoning that Members of Parliament would have sufficient information available to them to make decisions as the Hybrid Bill passes through Parliament.  That may or may not eventually prove to be the case but it is very disconcerting to find the government exercising this executive override power in these circumstances.  

The HS2 project is bound to commit the taxpayer to enormous expenditure and the environmental impact is clearly going to be massive.  The claimed need for secrecy is, in essence, a claim to protect a "safe space" for policy discussion.  Can it seriously be true that advisers to government are less likely to give frank advice if they think it might be made public?  It would appear to be so.  Furthermore, if the report is just about the arrangements to deliver the project then, it might be asked whether the POLICY had actually already been determined anyway.

Media reports on this decision include Daily Mail 30th January and Telegraph 30th January.

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Obiter J: 30th January 2014 - Blogpost No. 999

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