Monday, 27 January 2014

HS2 ~ Why the challenges failed in the Supreme Court

By using the method of a Hybrid Bill in Parliament, has a coach and horses been driven through the European Union's directives aimed at ensuring that important projects are subjected to environmental assessment?  A judicial review of the government's DNS document - High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8257, 10th January 2012)- failed in the High Court, the Court of Appeal and now in the Supreme Court.  Judicial review is concerned with legality and not merits.  HS2 may or not be a good idea but the court is not concerned with that.

The previous posts (25th January) and 24th January looked at some of the legal materials at play in the Supreme Court's decision regarding the High Speed Train - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary

Aarhus Convention and to EU Directives - (a) The Strategic Environmental Assessment (SEA) Directive - 2001/42/EC and (b) the Environmental Impact Assessment (EIA) Directive - 2011/92/EU.

The SEA Directive:

Lady Hale said [para 130]- "HS2 will be the largest infrastructure project carried out in this country since the development of the railways in the 19th century. Whatever the economic and social benefits it may bring, it will undoubtedly have a major impact upon the environment. There has never been a full environmental assessment of HS2 as against the alternative ways of developing the railway system, including ways which do not involve constructing new railway lines capable of carrying trains travelling at 250 miles per hour, such as the so-called "optimised alternative" favoured by the 51M, the body to which the local authorities involved in this case (and others) belong.

and, at [131] - One might have thought that it was the object of Directive 2001/42/EC, commonly called the Strategic Environmental Assessment Directive (the "SEA Directive"), ..... to ensure that such an assessment took place.

So, just how did the Supreme Court find that HS2 was not within the scope of the SEA Directive?  The key to this lay in the interpretation of Article 3 of that Directive:

"An environmental assessment, in accordance with Article 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects"

Paragraph 2 states that "...... an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for ..... transport ....... and which set the framework for future development consent of projects listed in Annexes I and II to the [EIA Directive]"

An assessment under the SEA Directive is therefore only required if the plan sets the framework for future development consent.  The government's DNS document - High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8257, 10th January 2012) - was not, according to the court, such a plan. It was an elaborate description of the HS2 project and included reasons for rejecting the alternatives.  As Lord Carnwath said [38], in one sense, the DNS "might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result."  However, the Hybrid Bill procedure placed the responsibility for the decision with Parliament and the DNS document did not constrain that decision-making process.  Hence, DNS was not a plan of programme with the meaning of Article 2.  This conclusion was based on the court's reading of decisions of the Court of Justice of the European Union.  The decisions are cited by Lord Carnwath at [para 19 ] and discussed extensively in his judgment.

The EIA Directive:

Was the Hybrid Bill procedure compatible with the requirements of the EIA Directive?  It was argued that the effect of - (1) the 'whipping' of the vote at the second and third readings, (2) the limited opportunity provided by a debate in Parliament for the examination of the environmental information, and (3) the limited remit of the select committee following second reading - was to prevent effective public participation.  As a result, the process would not comply with Article 6(4) of the EIA Directive.

Those points look at the realities of the Parliamentary process which will take place under the Hybrid Bill procedure.  It is true that objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the Bill and be heard.  It is also true that Parliament's standing orders require an environmental statement which has to be available for inspection and sale at a reasonable price.  Any person is permitted to comment on the statement and the Minister has to publish comments received and submit them to an independent assessor.  The assessor's report must be submitted to the House at least 14 days before second reading.  See the judgment of Lord Reed at paras 57-66.

Not mentioned in any of this is the cost and difficulty which  will be faced, in practice, by an objector who petitions against the Bill.  Details of petitioning are available here

It was contended that this procedure will not permit an adequate examination of the environmental information.  The court found this to be 'unpersuasive' and there was not reason to suppose that MPs will be unable properly to examine and debate the proposed project.

The court's decision not to refer this point to the Court of Justice of the EU is important.  The so-called 'CILFIT criteria' were examined by Lord Sumption and also, at paras 166-174, by Lords Neuberger and Mance.   It might well have proved to be desirable to make a reference so that the CJEU could consider the Hybrid Bill process against the requirements for public involvement in the EIA Directive.  It is not entirely clear that the process would pass muster.

A Question for the future?

As interpreted by the Court of Justice of the EU, Article 1(4) of the EIA Directive requires the legislative process to achieve the objects of the Directive.  A potentially difficult problem may arise if it is later contended that the Hybrid Bill process has not actually met the directive.  To what extent, in the light of Article 9 of the Bill of Rights 1689, may the courts examine that issue?  The Supreme Court did not answer that question but noted that it may arise - see paras. 200 to 211.

Bill of Rights 1688 [Article 9] that, "...the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament."

Other commentaries:

The HS2 Action Alliance has stated that it will bring a complaint to the Aarhus Convention Compliance Committee to establish that the Supreme Court's restrictive approach is contrary to the Convention.  They also plan to complain to the European Commission in the hope that the Commission will bring proceedings in the Court of Justice of the EU. 

The Alliance also argues that -"The consequence of [the court's] interpretation is that the SEA Directive can never apply to infrastructure plans where the body responsible for granting planning permission is a national parliament. The impact of this decision is to allow this and future Governments to avoid complying with laws designed to protect the environment by choosing to seek planning permission from Parliament rather than from an independent commission or inspector. Given any Parliamentary decision is inevitably whipped, the decision means Government can choose to opt out of environmental protection legislation by referring planning decisions to Parliament."

Local Government Lawyer 

Reading University - Railways and Law - Win in the Supreme Court

Rail News - Seven judges dismiss opposition to HS2

BBC News - Q and A:  High Speed 2


  1. EIA Directive, Art 1.4: "This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process".

    Can the Union function under a court which is prepared to ignore the plain meaning of the text (which undoubtedly reflects the compromise agreed by the drafters) in favour of a "purposive" interpretation, based on reading the Directive to mean whatever they would like it to mean?

    1. The CJEU decided that, if the directive was to achieve its aims, even legislative processes should be such as to ensure that environmental issues were considered and addressed. Some very large / complex projects are undoubtedly beyond the scope of the more usual planning procedures and so action by Parliaments was included in the directive. However, the aim was not to exempt governments from all obligations to the environment.

      I would certainly have doubts as to whether the process in the UK will properly address environmental questions. It may do but the difficulties of the petitioning process should not be underestimated. The task of petitioners is, of course, probably made more arduous when the government refuses to publish reports such as that by the MPA.

  2. My Generation fought a World WAR to prevent foreigners governing us or the ability to tell us what we may have in our once FREE United Kingdom of GREAT Britain and Northern Ireland. We now PAY them to do so. WHY? What is the point in having ANYONE in those two Houses of Parliament when all THEY can do is obey the orders of foreigners? So many gave THEIR lives for our FREEDOM to Govern ourselves, yet we betray them all.

  3. The High Speed Train. Part of the EU’s “Trans-European Transport Network (TEN-T) Policy”

    Today we were told of things that are new
    We are at last to have the H.S 2,
    No matter the cost of this new Train,
    Money for this will be found once again.
    Bridges are crumbling, they are so old,
    Disasters waiting as my tale unfolds,
    Motorways closed as repairs are done,
    ‘Tis the HS2 where the money has gone.

    Our roads are neglected and have been for years,
    Many are the ‘pot-holes’ that cause many tears,
    For money is needed for the High Speed Train,
    Never for Roads to have money again.
    People’s homes that stand in the way,
    Will be demolished, for those folks have no say.
    All to save those thirty minutes of travel,
    But there is more as my tales unravel.

    Lights not lit in the dark of night,
    To save more money, yet it isn’t right
    For in the dimness it is hard to see,
    The hazards that are waiting for you and me.
    Hard shoulders on Motorways into use have come,
    No widening of motorways will now ever be done,
    Maybe nothing on our roads will e’re be the same
    But Hey! We are to have the High Speed Train.

    The cost from each house-hold, so we are told
    Will be a thousand pounds whether young or old,
    Yet perhaps none of us can afford to pay,
    But we have never yet been allowed a say.
    Not one High Speed train into Birmingham City,
    Time saved on the Journey, will be lost, ‘tis a pity
    The half-hour saved will be needed however,
    Through another mode of travel, not so clever.

    Whose great idea was this big spend on Trains?
    That many people travel on just now and again?
    Our Politicians never said the words to me or you,
    That our sovereign Government have to obey the EU?